Malpractice Preventative Maintenance: Record Protocols and Happy Lawyers

by Julie M. Janeway, BBA, MSA, JD

From Little Victories™ Medical/Legal Consulting & Training, Onondaga, Michigan

Malpractice cases are, unfortunately, a guaranteed side effect of practicing medicine or working in the healthcare field. It’s not if you get sued, it’s when you get sued. When you get sued, you will inevitably have to scrounge up every record that ever even came in contact with your patient or his records, as well as every person who did the same. “The medical record creates a legal document which reflects the care provided to a patient and, in a courtroom setting, it may be likened to a witness whose memory is never lost.”[1] Your defense attorney will need those records to determine what was, and potentially more importantly, what wasn’t done.

In fact, your attorney isn’t the only person that will make that determination. Of course the plaintiff’s attorney and legal team will get a crack at the records. The claims analyst at the insurance company will review the records; the expert witness swearing out any necessary Affidavits of Meritorious Defense[2] will review them; attorneys for other defendants in the case will see them; and the attorney’s paralegals, financial and medical experts, and other witnesses and deponents will also go through the records carefully. So the records play a significant role in any malpractice case.

The plaintiff’s attorneys are looking for anything unusual, out of the ordinary, and hopefully dead outside the standard of care. Defense attorneys are looking for meticulous records that exonerate the defendant(s) and show that it was just another case of bad things happening to good people, not bad people happening to good people.

So what makes a defense lawyer happy when reviewing medical records in a case? Here is a list of things to remember and go over with your staff so that when you have that case pop up, you have a very happy lawyer. Remember: Happy lawyers mean happy doctors! Happy doctors mean happy people who work with happy doctors.

Keep contemporaneous records and be able to testify under oath that they were contemporaneous. Don’t play catch up on your charting. We all hate charting. Lawyers do it too, except we call it billing. It’s extremely important to chart each patient as you go, not do them all at the end of the day, or worse, at the end of the week. You need to get down all the details while fresh in your mind, not when they become clouded by many other experiences throughout the day or week. You must be able to testify under oath (that means truthfully!) that you charted this while, or almost while, it was happening.[3]

Get dictation done quickly, review it, and place it in the file immediately. Making sure that dictation is typed quickly is not usually the problem. Generally, if you’re dictating during or right after seeing a patient, the transcriptionists are getting to it within 48 hours. The big problem tends to come when the transcription is returned. The medical professionals who dictate the record entry often never review it for accuracy, or to fill in blanks left by the transcriptionist when something was not understandable. After failing to receive reviews or corrections, the transcripted report often ends up in the filing basket and doesn’t see the file sometimes for months. Review your transcription, make necessary changes or corrections, file continuously, and don’t let it pile up. The only way to eat an elephant is one bite at a time. Don’t let what is a series of small jobs turn into one big job you can’t handle and don’t want to deal with later.

Legibility. Make sure that others can read what you’ve written. Lawyers can’t dispute it or defend it if they have no idea what it says! Most of the time when attorneys ask doctors or other medical professionals what they scrawled across the page, they can’t read it either! That’s a problem, and the plaintiff’s attorney will jump all over it. Juries don’t like it as well. It makes the medical professionals look lazy, uncaring, unprofessional, incompetent, and even stupid. That’s hard to counter, and exactly what a plaintiff wants the jury to think.[4] Print everything if medical training has ruined your handwriting.

Clearly label the chart and use appropriate writing materials. Every page of the chart should be clearly and accurately labeled with the patient’s complete name and medical record number. Individuals making entries into the chart should use pen rather than pencil, which can fade or become illegible, and create a presumption that the information was changed. Use ballpoint pens or the like rather than felt tips or fountain pens which can leak through the paper and cause bleed through over notes written on the opposite side of the page, or on adjoining pages.[1]

Put the year on dates in records. As many physicians see patients over a series of years, please be sure to put the year on any date entries in the record. If a patient is seen on December 10, 2004, and then not

Don’t use colored pens or highlighters. Colored inks tend to break down after time, and often do not copy well. Clear copies of the record are extremely important, so please don’t make it harder to defend your position. Similarly, if you are highlighting something in the record, please only use yellow highlighters.

Colored highlighters obscure or even block the text underneath when copied. Yellow highlighters do not copy at all. We’d rather take the original record and hand highlight the copies to accurately reflect the original record than to try and mess with lightening and reproducing pages that are obscured by dark highlighters. The plaintiff’s lawyer always makes a big deal about not being able to read the record, and often makes allegations that the defendants were trying to hide something. Finally, never use pencil…it just begs for someone to claim the record was changed.

Use standard charting symbols. Please do not make up your own charting symbols unless you clearly mark in the front of the chart what the symbol is and what it stands for. For example, there is no standard charting symbol for “bruising.” If you want to develop one, simply note it in the front of each chart so that other readers will know that symbol means bruising. If you want to use a symbol to represent the term “nutritionally deficient,” then make a note of it prominently in the file. The use of standardized charting symbols by all personnel is highly recommended. Please don’t cause your lawyer or anyone else who will read that chart or records any extra work or ambiguity.[4]

DN u obr abbtn! What does this mean? It means: Do Not Use Obscure Abbreviations. Similar to not making up your own charting symbols, you should avoid making up ambiguous abbreviations for words that might be particular to your practice or geographic area. If you deal with unique words or identifiers and you want to abbreviate them, please make clear in the front of the file what you’re referring to in the abbreviation.

Accuracy. Please be very accurate in what you write. This should go without saying, but unfortunately it can’t. Say what you mean, and mean what you say. You may have to defend what you’ve written, and depositions can go round and round for hours over the incorrect use of a word, or the inaccurate use of a word or phrase. If you mean “a patient should be monitored weekly for further developments of this condition” but write “we’ll just wait and see,” a plaintiff’s attorney would jump all over that and so would a jury. Please take the extra seconds it requires to write exactly what you mean in the records.

No late additions, deletions, or amendments without detailed notation as to why. If you must add to a record, amend a record, or delete something from a record, you need to leave a detailed explanation about who, what, when, where, why, and how the change was made. Accurately and legibly write, date, and sign the notation. These are exactly the types of issues plaintiffs and lawyers salivate over. You should always note that the change was made to increase the accuracy of the record. Changing a record without notation as to who, what, when, why, where, and how can be the kiss of death in a malpractice or licensing defense case because it creates a virtually unrebuttable presumption that the person making the change was doing something underhanded or illegal. It’s hard to redeem the character of that person at a trial or hearing no matter how good his or her intentions may have been.[3]

Make sure signatures and initials are clear. Please make sure that whoever signs the records has been clearly identified. It is difficult to figure out who needs to be on the witness list when you can’t figure out who had their hands on the records. In a day and age when malpractice suits can come up years after charts and records are made, it is very important that we be able to identify who signed particular entries. It’s hard enough finding people we can identify given the very transient nature of medical personnel, let alone the ones we can’t identify at all. The one person we can’t find or identify may the one person on whom the entire defense case rests. If you notice a signature or initials in a chart or record that seems illegible, be sure to note somewhere the name of the individual and then sign your name and date the entry. Someone down the road may thank you profusely for saving his or her career or reputation.[3]

Note consecutive pages to eliminate presumption that pages were reordered or altered. If a report or series of entries, such as nursing notes or patient encounters, goes longer than one page, simply note that page number at the bottom or top. If a dictated report in its entirety is six pages, each page should say 1 of 6, 2 of 6, etc. It’s a simple thing to eliminate doubt about additions, deletions, or alterations of the record.
Use or create a standard charting or reporting format for your office or department. Many standard charting or reporting formats already exist, such as SOAP notes, HEENT formats, or H&P formats.

Discharge instructions are usually formatted, as are surgical reports. Office charting formats for particular specialties also exist, but if you aren’t using these existing formats, then simply create your own and make sure everyone in the office uses the same format and uses it consistently. Everyone charting differently creates a presumption of chaos and miscommunication. That’s not an issue that you need to be adding or defending when a case may be clearly narrowed to one specific standard of care issue that can be easily resolved.

Noting patient affect and demeanor, and avoiding libelous statements. It is very important to note patient affect, demeanor, and attitude in charts, but a fine line exists between noting these characteristics and behaviors and making libelous statements. Libel is a defamatory statement made in writing without regard for its truth or falsity.5 Being accurate in your charting and saying what you mean and meaning what you say should take care of much of this, but be careful about letting your own emotions dictate what your write. If a particularly belligerent and abusive patient irritates you, be sure not to note any inappropriate or unprofessional statements in the file. These statements, while they may be true, can be claimed as libelous because it was known that others would see them, and creates a presumption that the patient didn’t get the care he deserved despite his bad attitude. Be very clinical in writing about affect, demeanor, attitude and behavior. Write like you only watched it through a window and it didn’t really happen to you. Limiting statements to objective observations of what you saw, heard, smelled, and physically felt or touched will aid in this effort as well.

Finally, write only what you did or did not do, not what others tell you to write about your actions or performance. Again, this should go without saying but it can’t. If you are charting or creating records, you are responsible for the content of your notations. Although the doctrine of Respondeat Superior makes your superiors responsible for your actions and performance as well,5 that doesn’t necessarily take the heat off you entirely. If you are ever instructed to record that you did something when you didn’t, or didn’t do something when you did, you must be willing to put your job on the line in order to stand your ground and refuse to make false entries. As one of my favorite law professors used to tell us, “You have to carry a toothbrush with you at all times as an attorney and be willing to take it with you to jail if you are found in contempt of court in the zealous representation and defense of your clients.” As medical professionals who may work for corporations or individuals that may hold your jobs as blackmail to get you to falsify medical or billing records, you must always be willing to walk away from that job rather than falsify or be a part of falsifying any records of any type. You are charged with the care of human beings, and that even includes the billing for their care, and you should never put yourself in a position that will make you have to lie on the stand about your own record entries, actions, or performance, or those of others. In the law we have a word for that. It’s called perjury,5 and it’s a felony in every state.

On behalf of my brothers and sisters in law, I thank you for your time, consideration, and anticipated cooperation in these matters.

References
1. Medical Record Documentation. Risk Management Handbook. Yale-New Haven Hospital & Yale University School of Medicine Web site. 1997. Available at: www.med.yale.edu/caim/risk/handbook/rmh_medical_record.html. Accessed March 15, 2007.
2. Some states require the defense to file an Affidavit of Meritorious Defense or some such similar document. This type of document is signed by a health professional the defense attorney reasonably believes meets the requirements for an expert witness under the applicable statutes. It generally certifies that a health professional has reviewed the complaint and all medical records supplied by the attorney concerning the allegations contained in the complaint, states a factual basis for the defense against each complaint, the applicable standard of practice, how compliance was made, and how the claim is not related to the care and treatment rendered. For example, see Michigan Compiled Laws 600.2912e.
3. Legal Documentation Standards in Medical Records. American Health Information Management Association Web site. 2007. Available at: www.ahima.org/infocenter/guidelines/ltcs/5.1asp. Accessed March 15, 2007.
4. Overcoming Documentation Barriers. Hospital Payment Monitoring Program. Texas Medical Foundation Web Site. 2006. Available at: www.tmf.org.pepp/docbarriers.html. Accessed March 15, 2007.
5. Black, HC. Black’s Law Dictionary, Sixth Edition. New York, NY. West Publishing Company; 1992.

Additional Reading
1. Micheletti, JA, Shlala, TJ. Documentation Rx: Strategies for Improving Physician Contribution to Hospital Records. Journal of AHIMA 2006;77(2):66–8.
2. Ellison, J, Beldner, R. Hospital Records: What Do They Tell Us? National Forensic Center—The Expert and the Law 1984;4(5):2.

Category: Past Articles, Risk Management