Documentation is key to a medical liability defense
How a physician documents in the medical record is critically important in defending a medical malpractice lawsuit. Juries place great weight on what information is and is not in the medical record and when that information was entered. This article addresses the importance of good charting practices, the critical times to chart, mistakes to avoid, charting in the electronic medical record, and tips to improve documentation.
The medical record is both a medical and a legal document. Recording and communicating information pertinent to the patient’s condition is important for patient care, but in the event of a bad outcome, it is equally important legally as evidence of the care received. A thorough and accurate medical record is evidence that the doctor provided appropriate care and can be strong evidence that the physician complied with the standard of care.
Once a lawsuit is filed, a patient’s memories will frequently change but records do not. Accordingly, juries place great weight on what is in the record, because it reflects the facts of the patient’s condition at the time treatment was rendered, before a claim was filed.
Good charting either rebuts or bolsters disputed testimony between physician and patient concerning what and when something happened. No matter how good a physician may be as a witness, juries tend to believe that he or she is simply “covering up” for a mistake if the doctor testifies to something that is not in the record. On the other hand, juries place great weight on events that are charted at the time they happened.
Critical times to chart
Careful charting is always important, but especially at critical times, beginning with the new patient interview. Physicians should focus carefully on the patient’s medical history and prior medical records when seeing a patient for the first time. A mistake or omission made in recording information during the initial visit is likely to be repeated throughout the care of the patient.
Failing to obtain prior records may deprive a physician of crucial history needed to treat the patient. Patients frequently do not place the same importance on details of their medical history that their doctor might.
Documenting a differential diagnosis is also key. In a medical liability lawsuit, the patient’s attorney will likely ask the physician-defendant how he or she reached the diagnosis. These questions are designed to show that the physician failed to consider additional possibilities. Including a differential diagnosis in the patient’s medical record provides written evidence of how a particular diagnosis was reached, what other diagnoses were considered, and why they were excluded.
Follow-up care is another, often overlooked, area. Failure to follow-up on complaints and test results is a common cause for a medical liability claim. Because juries hold the physician to a higher level of responsibility than the patient, including responses to patients’ calls, test results, and referrals to other specialists in the medical record can reflect a doctor’s attentiveness and responsiveness and may dispute claims to the contrary.
Informed consent is legally required prior to performing a procedure. Failure to obtain consent can subject a physician to a claim of medical battery, regardless of the outcome of the procedure. Furthermore, patients may testify the doctor did not fully inform them of the risks before they underwent a procedure. The best consent form details the risks of a particular procedure; this provides better evidence of the doctor’s communication of risk than a more general form used by many different specialties.
Procedure notes are very important. Juries associate a good, careful description of a procedure with good, careful performance. The better the notes, the better evidence the procedure was done properly and the standard of care was met.
Charting at discharge from a medical facility is also important. Signing the chart when discharging a patient means the physician approved the discharge based on everything that was in the medical record. When discharging the patient, a doctor should be certain he or she has reviewed the record, including all available and pending test results. Furthermore, the patient’s signature on a discharge document provides further evidence that the physician shared information regarding follow-up care.
Refusal of care and patient noncompliance with treatment are vital points to document. Charting these events at the time they occur is crucial to rebutting a patient’s likely denial.
Prescriptions should be signed and dated; any samples given should be documented. Not only may patients make a claim concerning prescriptions, but government regulators may also question a doctor’s prescriptions if they are undocumented.
How to chart
The following tips should help you chart better:
- Make sure the medical record is accurate, contemporaneous, and legible. The more contemporaneous the charting is, the more believable it is. Legible records are important and should be transcribed whenever possible. Physicians have been sued because a nurse or other medical provider could not read the handwriting. Physicians have even been included in a suit because an attorney confused one doctor with another due to illegible handwriting.
- Use descriptive words and avoid terms that suggest error or accident. Although “inadvertent” is frequently used to describe unintentional actions, an alternate definition of the term is “not duly attentive.”
- Avoid late entries and never change records. Resist any temptation to “clean up” the record. Altering medical records, especially after a bad outcome, is certain to cause problems because the jury will view it as an attempt to “cover up” a mistake.
- Make sure the chart is complete. “Not charted, not done” is a potent weapon for a plaintiff’s attorney.
Electronic medical records (EMRs) offer clear benefits to physicians in treating patients. Information can be entered quickly, legibly, and contemporaneously and is immediately available. EMRs have pitfalls, however; the maxim “garbage in, garbage out” still applies.
Whenever possible, use a narrative rather than a template or pull-down menu. Plaintiff’s attorneys will challenge the accuracy of computer records, suggesting they are generic boilerplate “choosing” information. When combined with a good narrative that details the physician’s thought process, however, an EMR can be a powerful defensive weapon.
Be aware that EMRs can provide additional information helpful to the plaintiff’s attorneys because they will note when information was entered, whether it was changed and who changed it. This feature of EMRs makes contemporaneous, accurate charting mandatory.
Use, don’t abuse
Doctors should strive to improve documentation by explaining its importance to their staff, training staff how to chart, and creating clear expectations for charting. Periodic audits are also advisable.
A complete, accurate medical record done before a negative outcome occurs is a powerful ally for the physician defending a claim of malpractice. Done well it can be powerful evidence; done poorly, it can make a case difficult to defend.
Richard G. Tisinger Jr. is a partner at Tisinger Vance P.C., a law firm in Carrollton, Ga. He prepared this article at the request of the AAOS Medical Liability Committee.