Medical Record Documentation Is the Key to Malpractice Claims Defense

In scenarios where a patient alleges that a practitioner did not follow the standard of care, accurate and thorough documentation is often the practitioner’s best defense. In contrast, gaps in documentation can strengthen the plaintiff’s case. 

Why Does Documentation Matter?

Documentation provides the history of the patient’s illness, symptoms, diagnosis, treatment, and response to treatment. In addition to providing a record of the care provided and a chronological story of what has transpired, it serves as the principal communication tool for coordinating care between healthcare practitioners.

A patient’s medical record is also a legal document and may constitute the most credible evidence in legal proceedings, regulatory audits, and licensure reviews. 

Gaps in a patient’s record may benefit the plaintiff. An incomplete record may be used to:

• Attempt to infer or establish negligence.
• Discredit the record.
• Dispute whether care occurred.   
• Question the quality and credibility of the practitioners.
• Imply the healthcare team lacked communication and coordination of care.
• Argue the practitioner did not meet the standard of care.

The Four Key Elements of Medical Negligence

In order to allege negligence, the plaintiff must demonstrate: 

• There was a duty of care to the patient.
• That duty was breached by violating the standard of care.
• The patient experienced harm as a result.
• The harm resulted in damages, such as physical harm, emotional distress, and/or economic losses. 

What Should Practitioners Document?

Documentation provides a timeline of the care provided and demonstrates the continuity of care. Elements of good documentation include: 

• Clear, concise, and accurate entries that reflect what was done, by whom, when, for what reason, in what manner, and the patient’s response.
• Communication with members of the healthcare team, patients, and families.
• Timely assessments and reassessments.
• Assessments before and after interventions and responses to the intervention.
• Supporting documentation of clinical decision-making/judgment, i.e., why a treatment/test was or was not ordered and considerations regarding the differential diagnosis.
• Discharge planning and instructions.
• Significant or unusual events.
  • Objective documentation of interactions with patients including their reactions, behaviors, and agreement or disagreement with the plan of care. 

An example of documentation to support a differential diagnosis may appear as the following: “A diagnosis of GERD was made due to the nature of pain (burning) and precipitation with certain foods and positions. Coronary disease is unlikely due to lack of risk factors, character of pain, normal EKG, and the fact that it is not precipitated by exercise.” 

Understanding and Overcoming Challenges in Documentation

Medical professional liability (MPL) cases frequently focus on the documentation (or lack of documentation) in the medical record. In an MPL claim or suit, the documentation in the record often forms the basis for the claim’s defensibility.

Deficiencies in documentation may include:

• Omissions.
• Time delays or unexplained gaps in care.
• Alterations.
• Vague terms, such as “apparently” or “fair.”
• Inconsistencies among practitioners.

Additional challenges in documentation include:

• Emotional venting.
• Biased comments regarding a patient and/or family, e.g., frequent flyer, overprotective parent, etc.
• Pre-documentation prior to a procedure/treatment, office visit, or response to medication documented at time of administration.

Another challenge of documentation is when practitioners reference incident reports, peer reviews, or risk management involvement in the medical record. Documentation should include pertinent details of the event and the care provided that prompted the need for review, however, the related investigative documents and/or processes must not be referenced in the chart.
 

The Importance of Documenting Informed Consent or Refusal

Consent is an inherent right of the patient. Documenting informed consent or informed refusal is therefore critical. 

Informed consent is necessary for many procedures and treatments, including:

• Invasive procedures.
• High-risk therapies or medications. 
• Procedures with anesthesia or conscious sedation.
• Diagnostic procedures involving contrast or dyes.
• Chemotherapy or radiation therapy. 
• Experimental procedures and clinical trials.
• Electroconvulsive therapy.
• Testing for HIV.
• Blood and blood product use.
• Off-label use of medication.
• Treatments/procedures that require a specific explanation to the patient.

How to Document Informed Consent

Informed consent is a process, not merely the completion of a form. It involves two-way communication that engages the patient and allows for questions and joint decision-making between the patient and the practitioner. When patients refuse treatment, it’s important to explore the reason further, as refusal may simply be due to fears, questions, or concerns. 

In addition to completing the informed consent form, the completion of a written narrative in the medical record describing the discussion that resulted in consent or refusal is necessary. Failure to explain to a patient the proposed treatment/procedure in plain language or to provide sufficient related information are common consent-related risks. Informed consent is the practitioner’s responsibility and should not be delegated to another staff member.

When obtaining informed consent, it is recommended that the practitioner:

• Speak directly to the patient to explain the diagnosis and treatment recommendations. 
• Discuss the risks and benefits of the treatment.
• Discuss alternatives, including no treatment, along with their risks and benefits.
• Confirm the patient’s understanding and allow for appropriate time for them to make an informed decision.

If an allegation of malpractice occurs, the informed consent form and the documentation of the informed consent discussion support that the patient had an opportunity to make an informed decision.  

The Impact of Technology on Medical Record Documentation 

While technology provides for medical record efficiencies, it also has risks. Some of the technological risks include: 

• Direct messaging may streamline communication processes; however, it has not always been implemented with clear directives and guidelines. Challenges include: 
  • Use of unsecure messaging options, such as text messaging. 
  • Inappropriate information included in messages, e.g., PHI, conversations, inappropriate narrative/biased comments, etc.
  • Irregularities for capture of documentation. Staff are not always aware whether information is automatically captured in the medical record or if they need to document the message. 
  • Inconsistency in storage of information in the electronic medical record (EMR) has led to accusations of spoliation of evidence when the messaging is not accessible.
• Metadata, while not part of the legal medical record, may be requested and used during audits and legal proceedings. The metadata shows who has been in the chart, when and if anything has changed, late documentation, etc. Alterations noted during the metadata audit may be used to discredit the chart, the quality of care, and the credibility of the practitioner. 
• Templates and auto-populated or copied-and-pasted fields may result in incorrect information. In one case, documentation reflected that a patient had a urinary tract infection on each note over an extended time frame because the information was copied and pasted and not updated. 
• Drop-down menus may lead to problems. For example, practitioners may select the closest option or unintentionally click incorrect options. Ensure clinical staff unclick pre-populated fields that are not pertinent to the care provided to the patient. For example, if an examination of a specific body part (e.g., breast) is not completed, then unclick the prepopulated field pertaining to that portion of the exam. It’s also important to consider default values if a provider does not select an option. 
• Speech recognition technology has also led to concerns when the correct information is not captured. Practitioners often use disclaimers stating that they used voice recognition software and that it may have led to mistakes, however, such disclaimers do not exempt the practitioner from the ultimate responsibility of ensuring the information is correct. See The Joint Commission’s “Speech recognition technology translates to patient risk” for more information. 

The medical record serves as a chronological story of what transpired during a patient’s stay or encounter/visit. Not only does the medical record document the care provided to the patient, it’s also the principal communication tool among physicians and other healthcare practitioners regarding the patient’s care. It can also be a practitioner’s best defense against MPL allegations of sub-standard care.
 

This article is based on a Coverys presentation “Documentation: Challenges and Opportunities” by Susanne Hess, RN, BSN, MBA, CPHRM, and Ann Carter, HRM, CPHRM, CMPE.