Practice Tips

In medical malpractice litigation, the defense of claims frequently rests on the quality of patient care documentation. When a claim goes to trial, it can be many years after the patient's treatment. Because memories can fade, objective, timely, and complete documentation is your best defense. To a jury, the quality of the documentation equates to the quality of the patient care provided.

The legal record is generally the information used by the patient care team to make decisions about the treatment of a patient. The elements that constitute an organization's legal health record vary depending on how the organization defines its legal record, but it must explicitly identify the sources and location of the individually identifiable data it includes. The legal record is typically used when responding to formal requests for information for evidentiary purposes.

Excellent documentation supports medical decision-making and serves as a communication tool for all care team members. It will justify reimbursement from third-party payers, protect against allegations of medical malpractice, and meet statutory, regulatory, and professional requirements for clinical and business purposes.

• General Guidelines for Documentation of Patient Care.
  • Be timely, comprehensive, and objective.
  • Authenticate, date and time entries.
  • Avoid slang or euphemisms, such as "drug seeker" or "frequent flyer." Instead, document clinical assessment and treatment provided.
  • Use correct spelling and grammar. To a jury, inattention to such details may demonstrate inattention to the care of the patient.
  • Avoid unapproved, personal, or informal abbreviations. Be aware of recognized dangerous abbreviations and do not use them.
  • Use specific language: Avoid vague terminology, generalizations, and subjective statements. For example, rather than documenting "wound looks good," document what you observed, "incision is healing, no redness, and no signs of infection."
  • Be sure that electronic signatures comply with state and federal regulations.
  • Document after patient care is complete. Never pre-document care.
  • Refrain from criticizing a previous provider's care. Document a factual summary of pertinent clinical findings and the rationale for your plan of care. Refer questions about prior care to that provider.
  • When documenting difficult patient encounters, be objective and document the facts. Place statements made by the patient in quotations. Note actions taken by staff/physician and final resolution.
  • Include patient emails sent or received outside the portal.
  • When using transcription and speech recognition technology, carefully review transcribed documents and edit them as necessary. Prohibit notations such as "dictated but not read" or "I take no responsibility for the quality and validity of the information in this document."
• Paper Record Documentation
  • Be sure your documentation is legible.
  • Each page of the paper medical record should be labeled with the patient's name and date of birth or medical record number.
  • List patient allergies on the front of the medical record and appropriate pages of the medical record.
  • Do not try to squeeze information in the margins or onto a line.
  • Never use whiteout, write over, or erase an entry in a medical record. Instead, put a single line through the entry; write "error" and date and initial.
  • If it is necessary to add information to a medical record after the original entry, indicate the time and date of the updated entry and the original entry date.
• Electronic Health Records
  • Discourage the use of copy and paste function.
  • Information added to an electronic health record can never be permanently deleted; it will always be retrievable in the metadata.
  • Have strong policies prohibiting sharing passwords or sign-in information.
• Essential Content: Ambulatory Setting, include the following:
  • Reason for visit.
  • Past medical and family history.
  • Medication allergies and adverse reactions to medications or contrast media.
  • Current and accurate medication list.
  • Follow-up on previous problems and referrals.
  • Patient noncompliance with recommended treatment, including confirmation that the patient was informed of consequences.
  • Rationale for not proceeding with a specialist's recommendations.
  • Clinical examination findings; positive and significant negative results.
  • Plan of care; rationale for diagnosis or deviation from standards of care.
  • Patient response to health maintenance recommendations.
  • Patient education and understanding of follow-up instructions and treatment plan. Specify educational materials given to the patient. If the patient receives a hard copy of material that was printed from the EHR and this copy is annotated to add additional clarification, emphasize a section or delete a section, scan a copy of this changed form into the EHR to document the true copy the patient received.
  • Informed consent and informed refusal discussions.
  • Signed consent forms.
  • Any injections, immunizations or IVs given (including the name of the drug, dosage, route, site, time and date administered, name or initials of ordering physician, and name or initials of the person administering the drug).
  • Review of diagnostic test results and consultations, treatment or action plan, and notification of patient.
  • Failed appointments, including all attempts to contact the patient to reschedule.
  • Treatment-related telephone calls, including after-hours calls. Call documentation should reflect clinical decision-making, support actions taken, and provide a safe care continuum. Note:
    • Patient name or person calling on behalf of the patient.
    • Date and time.
    • Specific complaint and symptoms.
    • Advice provided.
    • Final disposition of the call and any referrals to other providers or facilities, including urgent care centers or emergency departments.
  • Amending a Medical Record:
    • It may be necessary to correct an entry in a medical record. Amending an entry could include correcting erroneous information, adding a late entry, adding information to a previous entry, or deleting incorrect information, such as documenting on the wrong patient. Develop policies and procedures on the appropriate steps to follow when amending your medical records. Never make changes to a medical record after receiving notice of a potential claim.
  • Alterations: An alteration of a medical record is a deliberate attempt to change rather than correct a medical record. Alterations of medical records almost always guarantee settlement of even medically defensible cases. Therefore, never alter a medical record!
  • Patient Request to Amend a Medical Record: Under HIPAA, patients have a right to request amendments to their medical records, and providers should determine if the changes will be made.
    • Develop policies and procedures to address requested amendments.
    • In accordance with HIPAA, act on the requests within 60 days of receipt of the request. A one-time 30-day extension is allowed. You must provide the patient with a written statement of the reason for the delay and the date the amendment will be processed.
    • If the request is granted, make the changes to the medical record and send a written, signed, and dated response to the patient within 60 days. Place a copy of the response in the patient's medical record.
    • If the provider denies the request, provide the individual with a written denial in plain language and include:
      • The reason for the denial.
      • The individual's right to submit a written statement disagreeing with the denial.
      • A statement that if the individual does not submit a statement of disagreement, they may request that their request and the denial be provided with any future disclosures.
      • A description of how they can make a complaint to the provider or the Secretary of the Department of Health and Human Services.
      • All documentation around denying the patient's request for an amendment should be maintained in the patient's medical record as defined in the organization's policies and procedures.
  • Adverse Events: When an adverse event occurs, the following information should be documented in the patient's medical record:
    • Objective details of the event, including date, time, and place.
    • Patient's condition immediately before the time of the event (if known).
    • Medical intervention following the event.
    • Patient response to the medical interventions.
    • Future treatment plans.
    • Disclosure discussion and plan.
    • See our practice tip, Disclosure of Adverse Events for more details on disclosure.
  • Digital Recording, Imaging and/or Photographing Patients: Digital recordings include videotaping, audiotaping, digital and still photography, and all other forms of digital imaging. A digital image is considered protected health information (PHI) if it can be used to identify the individual.
    • Develop policies addressing when and where digital recording is permitted and prohibited. Address unique work settings, such as the delivery room.
    • Ensure policies include employees, patients, visitors, volunteers, and the media.
    • Identify types of digital devices permitted by the organization.
    • Specify what devices are appropriate for employees to use for clinical images. Prohibit the use of personal devices, such as cell phones.
    • Obtain patient consent for digital recordings. This can be accomplished in various ways, including the general consent, notice of privacy practices, or a specific digital recording consent.
  • Assuring Quality Documentation Practices
    • Educate staff and physicians on documentation expectations.
    • Conduct internal chart audits to ensure documentation guidelines are followed and records are complete.
    • Review printed copies before release to ensure all record elements are included.

Resources

AHIMA. "Fundamentals of the Legal Health Record and Designated Record Set." Journal of AHIMA 82, no.2 (February 2011): expanded online version. http://bok.ahima.org/doc?oid=104008#.XpisiW5FzRN

ECRI Institute: Photography, Filming and Other Recording of Patients. Healthcare Risk Control. 2018 Apr 11. https://www.ecri.org/components/HRC/Pages/RiskQual15.aspx

AHIMA. "Sample Consent for Clinical Photography, Videotaping, Audiotaping, and Other Multimedia Imaging of Patients." Journal of AHIMA (April 2010): web extra. http://library.ahima.org/doc?oid=99416#.Xpirvm5FzRM