Documentation as a Risk Management Tool
Documentation of your actions is the most efficient and effective risk management tool available to you once a medical malpractice issue arises. The quality and completeness of your medical records will often make the difference in the outcome of malpractice litigation against you.
As a rule, physicians do a great deal more than they’re willing to document. A considerable amount of time and effort is expended in each case in thought process, review of data, history taking, physical examination, procedures, patient discussions, family interactions, telephone calls, etc. Yet, for some inexplicable reason, the physician fails to take credit for it. This is a mistake, not only in terms of potential malpractice litigation, but also for professional review organization activity and third party payer scrutiny. The medical record is the exclusive source of evidence that the services that were billed to a patient, insurance company or to a government program, were actually provided. Inadequate documentation may lead to refusal of payment or open the possibility of fraud and abuse charges.
Public perception dictates a simple axiom, good records bespeak a good doctor. You must strive to maintain quality medical records. They should be complete, concise and logical. If possible, have your records typewritten. Always prepare your records as if someone less knowledgeable than you will read them. Using JCAHO guidelines, good records both in the hospital and the office should include demographic data, a history, a physical examination, orders, evidence of informed consent (when needed) clinical observation, test reports and a conclusion at the time of discharge.
Prior to the performance of an endoscopic procedure certain information should appear in the record. The reason(s) for the performance of the procedure is (are) essential. Supporting information related to the patient’s history and physical examination must be documented. Relevant X-rays and laboratory data should be included in the record.
The process of informed consent must be documented. If a form is used, it must be appropriately signed and any blank spaces filled with information of your planned procedure prior to presentation to the patient. An additional note by you documenting the informed consent process including the disclosure of the nature, benefits, risks and alternatives to the procedure is extremely helpful. If the patient is unable to sign or consent to the procedure, consent should be obtained from the individual who has power of attorney for health care decisions. If any pre-printed brochures, videotapes or other information was used as part of the informed consent process, document their use accordingly.
All endoscopic procedures should be documented by a complete report which becomes part of the patient’s medical record. The following items should be included in the endoscopic report or in the medical record pertaining to the procedure:
- Patient identification number;
- Relevant family history;
- Endoscopic procedure performed;
- Instrument used;
- Medications used, site of administration, amount given, time given;
- Monitoring devices, if any, and a record of the result;
- Anatomic extent of examination;
- Tissue or fluid samples taken;
- Results of any therapeutic interventions;
- Photographs, if any;
- Notations of any videotape recording;
- Diagnostic impressions;
- Disposition and follow-up.
This report should be completed as soon as practical after the procedure is finished. A temporary entry into the chart should be done to provide information until the formal report is transcribed. Special attention should be given to medications and concurrent medical illnesses such as cardiac or pulmonary diseases. Drug sensitivities, drug allergy and anticoagulant use are noteworthy. Vital signs should be noted and recorded prior to, during and after all endoscopic procedures. Particular attention should be directed toward the recordings of any monitoring devices used during a procedure. Record the use of any narcotic, sedative or antagonist used after the procedure is completed. The patient’s state of alertness and awareness should be noted, especially prior to discharge. Events such as an emetic episode, respiratory distress, vasovagal reaction, diaphoresis, etc. should be documented and any treatment offered so described.
During the post-procedure period it is important to record the patient’s vital signs, state of consciousness and his overall physical well being. Follow-up instructions should be given to the patient and their attendant both verbally and in writing. The following represents some important elements of your discharge instructions:
- No driving or dangerous activities for a reasonable period of time, if sedatives were used;
- Instructions to call you if symptoms such as pain, bleeding, vomiting, painful swallowing, etc. occur after discharge;
- Any prescriptions given;
- Any further laboratory, X-ray or endoscopic studies recommended;
- Follow-up appointments with you or a primary physician; and,
- Follow-up regarding pending tissue samples.
DOCUMENTING THE COMPLICATION
Complications happen in endoscopic practice. When one occurs, it should be documented in the record. Maintain objectivity in your recording. That is, what happened, how it happened, the patient’s responses in terms of symptoms and vital signs, the actions taken by you and any further actions necessary.
Complications such as perforation and bleeding are not endoscopic malpractice per se. Provided you practice within a reasonable standard of care, these occurrences should not lead to successful malpractice litigation. It is important for you to recognize complications in a timely manner and to respond to them in a correct therapeutic way.
You must be honest and forthright with the patient and his/her family. Don’t ever be deceitful or lie. Explain what happened in an empathetic manner and describe what you are planning to do in response to the complication. Never point fault at yourself or anyone else. Do not be overcome by feelings of guilt or self-deprivation. Be certain that the record reflects your discussions and your concerns. Informed consent is a great risk management tool for complications. It is your best defense against a possible malpractice charge stemming from an endoscopic complication. See the informed consent section for more detail.
The telephone is an integral part of medical practice today. You should consider developing a system for documenting your telephone conversations since you often give advice and recommendations via this modality. Keeping a small notebook handy to help you recall to make an appropriate telephone entry into the patient’s chart would be useful when you are away from the office. Even though you may recall a telephone conversations years later during litigation, your recollection will appear self-serving if there is not supporting documentation in the chart. Generally, from an evidentiary standpoint, if it is not written, it’s believed it didn’t happen. Conversely, if it’s part of the medical record, it’s believed it did occur.
Electronic mail is becoming an increasingly important means of communication. Patient-to-physician e-mail will likely become increasingly utilized in the future. The same rules for maintenance of chart entries should be followed for recording or maintaining e-mail notes. Confidentiality is no more nor less an issue with electronic notes than with written notes. There is concern about the security of e-mail, internet and other electronic communication forms. Encryption programs should be considered if doubt exists about security. Information from patients-to-physicians or from physicians-to-patients needs to be documented in the medical record. Physicians engaging in e-mail communication with their patients must make them aware that e-mail is not appropriate for certain types of communications. The patient should not use this form of communication for emergencies. They should be made aware that your e-mail will go unanswered while you are away from practice. Establishing expectation, guidelines, and discussing the possible lack of confidentiality is reasonable if e-mail correspondence is used.
MAINTENANCE OF THE MEDICAL RECORD
Confidentiality of the medical record is the duty of the physician and his/her staff. Improper disclosure of information may result in liability. Each staff member should be familiar with the need for record confidentiality. It might be useful to have staff members sign a document attesting to the fact that they understand and respect patient and record confidentiality.
Computer stored data has the advantage of space considerations, but there is a greater risk of data loss. If computer storage is used, a back-up system should be considered. Confidentiality in computer systems may be somewhat harder to ensure, but reasonable precautions such as limited access to the system should be instituted. A user log can be created to electronically identify a users activity within the medical record. Such a log can have a significant effect to deter inappropriate browsing of the electronic medical record.
CORRECTING THE MEDICAL RECORD
There may be times when you need to correct the medical record. This is permissible provided you initial, date and time the new entry. Never remove any written record or portion thereof from a chart. Never alter the old record so that any part of it becomes unreadable or illegible. Attempts at alteration are detectable with techniques such as ink dating. If you wish to negate an entry written by yourself, simply place one line through the text, rendering it still readable; initial and date. For computerized records, a corrected copy should be accompanied with a statement that a prior version exists. Both the original and corrected version should be saved. If it can be shown that you altered a record in an attempt to obfuscate or to vindicate yourself, you will lose any and all credibility you have in a litigation situation.
RECORD MAINTENANCE, OWNERSHIP AND RELEASE
Medical record retention is covered by each state’s regulations. The regulations vary significantly and physicians should acquaint themselves with their own state statutes and recommendations of their state medical society. With pediatric patients, records must be kept for the statutory period until their 18th birthday. If you fail to maintain records for the prescribed period of time, you may be subjected to disciplinary action.
The medical record belongs to the physician but the patient owns the information and the right to control who has access to their medical record. Therefore, the patient does have an interest in his/her medical record and he/she must be given a copy at their request for reasonable cost of copying.
Upon receipt of a properly executed release by the patient, his administrator or guardian, or subpoena or court order, you may release a copy or original (if ordered) to the appropriate party. Never send the original record unless specified by a court and be certain that a true copy is maintained for your records.
Documentation is the most important risk management tool you have once litigation or the possibility of litigation arises. Document carefully, concisely and completely. Always anticipate that the medical record will be scrutinized by someone less knowledgeable than yourself and let your document make you appear to be the good physician that you are.
The preceding information is intended only to provide general information and not as a definitive basis for diagnosis or treatment in any particular case. It is very important that you consult your doctor about your specific condition.