Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
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Section Seven: The Medical Record
Documentation of Care Provided
An accurate and complete medical record serves several purposes. It
- provides a database for planning, evaluation, and treatment
- allows for continuity of care
- documents the patient's day-to-day condition
- documents communications between the primary care provider and other health care professionals involved, and
- provides written evidence that can be used to protect the legal interests of the hospital and/or health care provider(s).
The medical record is the best device we have to protect against malpractice claims, as well as the basic tool for monitoring and evaluating any patient’s progress. Yet the patient chart is frequently taken for granted. In an era when computerized record management systems are finding their way into many facilities, patients’ charts still too often lack sufficient patient care information. Poor record keeping remains a major deficiency that can be more of a burden than a help for the health professional at legal proceedings.
It is clear that it is the responsibility of the health care provider to maintain an orderly, precise, and legible document that describes the monitoring and care of his/her patient. The most caring and dedicated physician may be defenseless in a court of law when he/she is accompanied by a chart which is illegible or lacking in good documentation. In litigation, your care is only as good as your charting. The patient’s memory of events will usually prevail over that of the physician. But if the physician has the event in question documented in the chart, then his/her case is strengthened considerably.
A good rule to remember is that every patient encounter deserves a thoughtful evaluation and notation, no matter how trivial the event may be. Minor everyday occurrences may be cause for litigation if the outcome is unacceptable to the patient. More importantly, in the absence of the attending physician, colleagues, consultants, and nurses need accurate information in order not to compromise care. If we make careful documentation a regular feature of our charting, it will become automatic.
The following are some elements of a defensible medical record. Whether it documents an admission or an outpatient/emergency room encounter, the characteristics are the same: completeness, objectivity, consistency, and accuracy.
- Admission or encounter history: Objectively assess the patient’s subjective complaints, including duration. Always comment on previous visits or treatments for similar conditions. Indicate the source of information if it is not from the patient. Note allergies, immunizations, pertinent negatives, and relevant past medical history. Include sensitive topics such as sexual history, drug use, or psychological problems if they relate to the patient’s illness or visit.
- Admission or encounter physical: This compliments the history. You should fully address the organ system(s) related to the chief complaint and include a complete overall evaluation. Note changes that have occurred in physical findings since the last encounter. Be objective. Note pertinent negatives.
- Orders: Clear, well written, and legible orders are essential, as serious and even fatal errors in medication or dose can occur as a direct result of careless or hurried writing. If you choose to abbreviate, use only abbreviations approved by the facility medical staff.1 Specify details, especially when writing for medications. Don’t write “call for fever,” but rather say “call for temperature over 101°."
- Note all test results: If you order laboratory or other investigations, always note the results in the record. Failure to acknowledge important laboratory data has been noted to occur as often as 20-50 percent of the time in some risk management studies.
- Progress notes: Write regular, meaningful entries, with the date and time recorded. Avoid notes that simply say “status quo” or “no problems.” The SOAP format is recommended because it encourages a complete entry. Include both subjective and objective elements, note changes in condition, and update your assessment and plan of action. Always acknowledge observations and contributions of other health care providers such as nurses and consultants (attorneys commonly search the nurses’ notes and the physicians’ notes for inconsistencies). If patients remain in the emergency room or outpatient department for an extended period of time, be sure to write an addendum to your initial evaluation that updates their progress.
- Operative reports/discharge summaries: These should always be done in a timely fashion. Reports dictated long after a complication has occurred or the patient has been discharged can be construed as self-serving and less accurate than those dictated at the time of the procedure or discharge.
- Disposition: It is important to note the condition of the patient when discharged from your care (inpatient and outpatient). Make comments relevant to why the patient presented and the level of improvement attained. Provide documentation of patient care instructions, verbal or written education, and return appointments.
- Legible handwriting and signatures: These are always important. One study in the New England Journal of Medicine noted physicians’ signatures to be illegible as often as 80% of the time.2 Physicians may be called to testify simply because their notes are not readable. It is best to rubber-stamp or print your name next to your signature at all times.
- Use correct format for alterations: Make changes in a way that demonstrates you are correcting an error and not trying to hide information. Draw a single line through an error; note the time and the date of change and initial it. “After the fact” additions or changes should be added at the end of the record, never squeezed in between the lines of previously written progress notes (where they may be construed as an attempt to reconstruct the record). Always label late entries as such.
- Document noncompliance: If a patient refuses to have a procedure performed or fails to follow recommendations, indicate in the chart why the treatment or procedure is necessary and that the patient chose not to follow your advice.
- Outpatient clinic note: For outpatient notes, the same general documentation principles apply. For risk management purposes, however, it is important to acknowledge in the provider’s note what the triage nurse or other practitioner(s) have written about the purpose of visit. Also, note all vital signs, even to say “unremarkable” or “normal.”
Protecting Medical Records Once a Tort Claim is Filed
It is extremely important to have complete and accurate medical information when reviewing medical records in connection with malpractice tort claims. Although uncommon, copies of Indian Health Service (IHS) medical records submitted for review occasionally appear to have crucial information that is either missing or that may have been altered. Missing or adulterated documents may harm either the claimant’s case or the government’s case, depending on the circumstances.
The Office of General Counsel recommends that all IHS facilities adopt the following process once a tort claim alleging malpractice is filed.
- As soon as you receive notification or have reason to believe that a tort claim has been filed, sequester the patient’s entire medical records, (especially fetal monitor strips) and all of the x-rays. Make a copy of the medical record and all the x-rays.
- Return the COPY of the medical record to the medical records room, and return the COPIES of the x-rays to the radiology files. The copies will be used for continued clinical care of the patient. New original records can be added to the files in circulation.
- Paginate the original record by numbering the sequestered pages of the record from oldest to newest using indelible ink. Similarly, number the original x-rays from oldest to newest.
- Keep the paginated original records and x-rays under lock and key for at least two years after the incident. Never send original records or x-rays to anyone.
- If the patient has expired, sequester the record, paginate it, and hold it for at least two years. However, it is not necessary to make copies unless a claim is filed.
- Copies of the original records may be sent to the claimant’s attorney, provided proper consent is obtained. If the patient or the patient’s living relative (with proper clearance) requests to review the sequestered original records, he/she may do so only in the presence of a service unit employee.
Electronic Medical Records (EHR)
There is evidence that the use of electronic medical records can reduce the costs associated with tort claims and malpractice judgments. It is intuitive that if EHR improves patient safety through provider order entry and clinical decision support, fewer tort claims will result. Just as important is the fact that most malpractice claims, settlements, and judgments occur because the clinical documentation is inadequate to explain or justify the clinical decisions and care provided to the patient. Private sector malpractice insurers often offer discounts to practices using electronic records because these practices have lower claim costs.
The use of EHR for both clinics and hospitals is slowly becoming more commonplace. The Veterans Health Administration is an example of a federal agency that has made the transition to a paperless medical records system. The IHS is also testing the use of a similar electronic health records system at a number of health centers (see section on EHR at the IHS Web page at www.ihs.gov/cio/ehr). However, the same requirements for documentation of care and protection of information apply equally to EHR as they do to traditional paper files. Once a tort claim is filed, the information contained within the subject patient’s EHR must be electronically locked and or stored to prevent alteration or loss of evidence.
Remember, the patient’s record is both a medical and legal document; make it work for the benefit of the patient and the medical staff.
1 The JCAHO National Patient Safety Standards contains a list of “Do Not Use” abbreviations for physician orders. Refer to your facility’s JCAHO Manual.
2 White KB, Beany JF. Illegible handwritten medical records. NEJM, 314, 6:390-1, 1986.
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