by Ann L. McNary, JD
Ms. McNary is Senior Risk Manager at Professional Risk Management Services (PRMS).
Funding: No funding was provided for the preparation of this article.
Disclosures: The author is an employee of PRMS. PRMS manages a professional liability insurance program for psychiatrists.
Innov Clin Neurosci. 2022;19(7–9):77–79.
This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation and other resources offered to health care providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers might provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other health care professionals so “clinician” is used to indicate all treatment team members.
While I’m confident in my ability to provide good clinical care, I often struggle with how best to document that care. I have colleagues who document like court stenographers and colleagues who barely write a word. What should I be doing?
It’s hard to overemphasize the importance of good documentation, but at the same time, it’s important to recognize there is no such thing as a perfect record. As with most aspects of psychiatric practice, documentation remains a lifelong learning process, a perpetual skill-in-progress that must continually be reassessed to respond to changing demands and considerations.
The purpose of your medical record. In order to determine what to document, it’s often helpful to think about why you are documenting. First and foremost, you are documenting to support good clinical care. That means documenting not only to facilitate ongoing care by you, but also by a subsequent treating provider. If someone else were to look at your chart, would they understand your treatment plan and your rationale behind your recommendations? Would it be clear what other medications/therapies were tried in the past and why they were not continued?
Another important purpose of your record is to assist you in your defense in the event of a claim, lawsuit, or administrative action. A good record demonstrates the knowledge and skill you exercised during treatment, provides a contemporaneous assessment of the patient’s needs and behaviors, and documents significant events, revisions of the treatment plan, and explanations of your decisions. Documenting what you did not do and why may be just as important as documenting what you did do and why. This is particularly true if you are rejecting or deviating from a standard course of treatment. In a lawsuit alleging a breach of the standard of care, you would want to be able to demonstrate your knowledge of generally accepted treatment (e.g., medications, standard dosages, etc.) and why, in this particular instance with this particular patient, your choices were appropriate.
Those who accept insurance also use their records to substantiate their billing and demonstrate adherence to payer guidelines. If you participate in any insurance plans, you will want to take a look at your provider manual and documentation guidelines. From time to time, your records may be requested, and insurance companies have been known to demand reimbursement when documentation does not support billed charges. In the worst case scenario, allegations of fraud may be made against a physician. For additional information, please see “EHR DOCUMENTATION: How to Keep Your Patients Safe, Keep Your Hard-Earned Money, and Stay Out of Court.”1
What to document. At a minimum, your records must comply with all regulations regarding medical record documentation. Many states have very specific requirements on such things as basic contents of the record, consent to certain types of treatment (e.g., telemedicine), documentation when prescribing controlled substances, and the legibility of records. Licensing boards can and have taken action against physicians for poor documentation—even when there have been no complaints regarding the doctor’s care. If you happen to hold licensure in more than one state, remember you must also comply with documentation requirements for patients seen in other states, which may be more comprehensive than your own state. If you are prescribing a medication with a Risk Evaluation and Mitigation Strategy (REMS), there may be documentation requirements that you must complete. Your institution may also have specific requirements for adequate documentation.
Beyond basic requirements, the major aspects of patient care should also be documented, including the following:
- initial and ongoing assessments of suicide risk
- treatment recommendations/plan and modifications
- the informed consent process
- medication information (e.g., medication name, dosage and size of prescription, refills, effectiveness of medication, any side effects reported or medication allergies/sensitivities, changes of medication or dosage and the basis for such modifications, etc.
- patient history and examination
- laboratory test results and patient monitoring and reports from psychological testing and physical examinations
- laboratory data
- instructions to patient and family
- dates (and length) of service
- initial assessment, diagnosis, and subsequent re-assessment of the patient’s needs
- any signed informed consents for treatment and authorizations for release of information, including releases to third-party payers
- names, addresses, and telephone numbers of the patient and designated others, if the patient has granted appropriate authorization to communicate with others
- consultations with other healthcare providers
- what treatment options/actions were considered, what options/actions were chosen and why, and what options/actions were rejected and why
- documentation of the termination process
- a discharge summary (if relevant)
- treatment considerations
- copies of relevant correspondence concerning the patient (including texts and email)
- late arrivals, no-shows, and patient cancellations
How to document. Once upon a time, psychiatrists expected they would be the only one to see a patient’s records, but those days are gone. At some point, a patient may need you to release records in order to defend or prosecute a lawsuit, support a disability claim, prove fitness for a particular job, obtain life insurance, etc. Yes, you own the records, but except in limited circumstances, your patient has the absolute right to access the information and grant that access to others. As such, in addition to what to document, you need to think about how to document.
As stated previously, the main purpose of a medical record is to support good clinical care, but in so doing, you have a bit of wiggle room. While still documenting to appropriately capture the situation clinically, consider your choice of words and try to document discreetly. This does not mean keeping a scant record to satisfy the demands of your patient or documenting in a way to paint your patient in a more favorable light. This means documenting what is necessary for continuity of care, while at the same time recognizing that someone other than you may very well see your notes. As an example, if your patient tells you that she is having marital problems and is having an affair, consider the possibility that your records may be requested in future divorce proceedings. How much detail is really needed to support your treatment recommendations? The facts are what they are, but you have to determine which facts are relevant to care.
A word about informed consent. Most doctors do a good job of explaining the risks and benefits of treatment and obtaining informed consent for that treatment, but they often fall short when it comes to documenting those good efforts. If your patient suffers an adverse effect from a medication, the words “consent obtained” may not be sufficient to convince a jury your patient was aware of potential risks. Consider personalizing your entry; document who was present, risks particular to your patient due to an underlying condition, other providers who may have weighed in (e.g., an obstetrician in the case of a pregnant patient), the patient’s questions, and your answers to those questions. Another risk management tip is to provide your patient with a copy of the United States (US) Food and Drug Administration (FDA) medication guide for the medication you are prescribing. In addition to information for prescribers, the FDA has information directed to patients that clearly outlines the risks of the medication and important things to know about it. A copy should be kept in the patient’s chart. Consent forms may also be used, but documentation of your discussion with the patient is often more compelling to juries.
What not to do when documenting. Do not wait to create record entries. Avoid waiting until the end of the morning/afternoon/day to make entries, as essential information can be forgotten.
Do not alter records. Even if your records are less than desirable, an experienced defense attorney can work well with a cooperative clinician and a “good enough” record. But an altered/falsified record will be indefensible if discovered (and they almost always are). Remember also that any alteration of medical records could jeopardize coverage under the terms of your professional liability insurance policy. In situations where there is legitimate cause to correct a paper record, be sure that you carefully date the correction, clearly note that you are correcting an error, and sign or initial the correction. Make corrections using single line strike-through, date, and initial the corrections. For corrections that involve more than a word or phrase, amend the original entry with a statement about where to find the correct information. Then, make a new entry (in current chronological order) indicating that a correction is being made and giving the correct information. Date and sign or initial both entries. Bear in mind, however, that after a bad outcome, even a legitimate correction may be problematic. Check with your insurance carrier or attorney before making any changes.
Do not include communication with your malpractice carrier or personal counsel. Even though you may have contacted them for advice regarding a particular patient, this should not be noted in the patient’s chart. Instead, create a separate administrative file for such information.
Do not include personal comments about patients, names of third parties, or other extraneous references that do not serve a therapeutic purpose.
- Vanderpool D. EHR DOCUMENTATION: how to keep your patients safe, keep your hard-earned money, and stay out of court. Innov Clin Neurosci. 2015;12(7-8):34–38.