Medical Documentation and Its Legal Implications The medical record is a valuable legal document. A complete medical chart facilitates medical review solutions including medical chart review.
Documentation is an indispensable component in the legal system, and the failure to document relevant data is regarded as a major breach of and deviation from the accepted standard of care. Accurate documentation in clinical care, as a medical review company serving personal injury lawyers knows, is important both from the point of view of protection from legal consequences and from that of patient care and quality assurance. It is important therefore that the medical record is complete in every respect. What are the risks involved in an incomplete medical record? •
It is proof that the care provided was insufficient/incomplete
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Shows non-compliance with the policies of the organization
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Supports allegations of negligence and fraud
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Results in poor patient care by other members in the healthcare team
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Results in inappropriate/inaccurate billing and consequent charges of fraud
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Could compromise safe patient care and interfere with patient-associated studies
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Reduces reimbursement/gross revenue
It is a scary fact that medical errors are the 3 rd leading cause of death in the United States – this is according to Johns Hopkins University School of Medicine researchers. Every year, at least 250,000 patients are estimated to die in the U.S because of such errors. One of the major reasons for medical errors is erratic documentation of patient details. 70% of medication errors entered in patients’ charts actually reached those patients, says a 2017 study from the Patient Safety Authority in Pennsylvania. Three of those medical errors involved medications such as opioids, insulin, and anticoagulants. The danger is that all of these medications have the potential to kill a patient if they are administered incorrectly.In her huffpost.com article, Abby Norman speaks about the practice in some medical offices of automating the physician’s dictation into reports through voice recognition software. She says it is an imperfect practice and often needs additional double-checking by a real human. Even a minor error such as a wrong spelling could have negative consequences if that record is used in a medical malpractice lawsuit. In addition, such errors could mislead another member of the healthcare team, influence how the office’s service is coded and billed, and even confuse/mislead the patient when he or she is reviewing the medical record. Abby Norman believes that the less humans were involved in the oversight and the more heavily the records relied on technology alone, the more often mistakes creeped into the medical chart. Let us consider the legal consequences of poor or incomplete documentation. •
Criminal liability under the False Claims Act
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Administrative liability: Disciplinary and licensing procedures
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Civil liability, defending one’s medical practice in a lawsuit
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Excluded provider: this could be a mandatory 5-year prohibition from rendering services in a healthcare provider organization that receives federal or state financing
To avoid legal risk, providers must ensure that the medical record entries are timely and thorough, and meet professional standards. Interventions made by nurses and other healthcare professionals including follow-up on phone calls to and from other healthcare providers and family; and client outcome must be clearly entered into the medical chart. Importantly, there should be a regular backup of information, and a plan for data restoration. This should be frequently tested to make sure that data restoration is possible. Apart from being a HIPAA security rule requirement, these steps would ensure the integrity of the record. Now that the electronic health record has become mandatory, there are issues unique to computerized medical record entry. To avoid such concerns, here are a few things to note: •
To avoid confidentiality and data breach issues, make sure that effective policies and procedures are developed and adhered to
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There should be password-protected access to data files and these passwords must be unique to each individual user
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Do not turn off, override, or ignore alerts
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Have protocols in place with regard to e-mail communications with patients. You should be able to establish physician-patient relationship, and clarity regarding turnaround time, disclaimers and so on.
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Ensure that the electronic medical record clearly captures prescriptions, if it doesn’t, scan the prescriptions into the record
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Make sure that no data is destroyed, in case a lawsuit is initiated
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Scan all paper records into electronic records to ensure ease of access and to facilitate the chart review process
It is important to remember that documentation is very useful in liability prevention. Accurate documentation enables the use of clinical judgment at critical decision points. Clinical judgment may be defined as “an assessment of the clinical situation and a response congruent to that assessment.” Clinical judgment
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being the direct opposite of negligence, will provide apt defense in case a malpractice lawsuit arises. The judgment made is based on objective as well as subjective clinician factors that originate from the clinician’s actual encounter with the patient. A clear identification of the decision-making process that goes into a treatment decision made will help derive a benefit from the imminence of observations made during the patient encounter. The response to clinical assessment must agree with the clinical needs that are defined by the patient evaluation. An example of an incongruent clinical judgment and response is “Patient still extremely suicidal, discharge today”, as quoted in
Thomas G.
Gutheil’s article “Fundamentals of Medical Record Documentation” published in https://www.ncbi.nlm.nih.gov/pmc/articles. Insurers also demand perfection with documentation and reimburse only those services that are properly documented. The most important document to defend against or prevent legal actions associated with personal injury lawsuits, workers’ compensation claims, disability evaluations, criminal cases, and medical malpractice, the medical record is admissible at a trial. It should therefore be complete and accurate. A complete medical chart also facilitates medical review solutions such as medical chart review and summarization that are vital in medico-legal lawsuits. Following the basic principles of sound documentation will help with risk management and liability prevention.
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