Chart can deter lawyer from pursuing claim — Attorney will have ‘nowhere to assert a claim’
Chart can deter lawyer from pursuing claim — Attorney will have ‘nowhere to assert a claim’
Does a patient’s chart include all tests and treatments, a full medical and social history and physical exam, differential diagnoses, critical thinking thought process steps, and medical justification for preliminary and final conclusions regarding treatment and diagnosis?
If so, this chart goes a long way to support compliance with the standard of care, says Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM, principal of the Kicklighter Group in Tamarac, FL.
“When there are no omissions in the documentation in the steps of the process, often there is nowhere to assert a claim of omission or commission as a basis for a malpractice suit,” she explains.
Full and legible documentation of the office practice record is just as important as the documentation in a hospital, ambulatory surgery center, or other place of care, advises Kicklighter. “Documentation in a medical record should not have to be interpreted or deciphered as if it were a foreign language,” she underscores. “The interpretation or deciphering could be done in error and could be the basis of a preventable injury or untoward outcome.”
The fully documented, legible medical record is “the first line of defense, or the first giant step of the pitfall of lack of defense,” says Kicklighter. “If it is not documented, then memory and usual and customary practice are what is relied on. That then leaves more room for the jury to decide on what they believe or not.”
Your charting is not just a clinical record for the care of patient, says Richard S. Lovering, JD, a partner in the litigation group of Bricker & Eckler in Columbus, OH. It is potentially a trial exhibit several years from now to demonstrate that all healthcare providers complied with accepted professional standards, Lovering says. “Years later, after memories have faded and recollections differ, the chart will be the trial exhibit that will either incriminate or exonerate the practitioner,” he says.
Here are risk-reducing strategies that could deter a plaintiff attorney from pursuing a claim:
• It is better to have documentation of an interaction, even if it is general in nature.
For example, “Discussed in detail risks and benefits of the procedure” is better than relying solely on an informed consent form or nothing at all. “This gives the provider the leeway to discuss routine, custom, and habit concerning informed consent discussions,” says Derek S. Davis, JD, an attorney with Cooper & Scully in Dallas.
It is better, however, to be specific regarding timing of interactions, as this can become a pivotal issue if a bad outcome occurs, says Davis. In one case involving a doctor who took call over the weekend for one of his partners, the patient had received an epidural pain injection on a Friday. “The dispute boiled down to whether the patient called the doctor’s on-call service on Saturday or Sunday,” says Davis.
If the patient called on Sunday, the standard of care required the patient to be evaluated in the emergency department if she was still having pain in her back. The doctor testified that he received the call on Saturday and called a prescription into the pharmacy.
Unfortunately, the pharmacy records showed the patient picked up the prescription on Sunday, and the doctor only recorded in his records that the call came in “over the weekend.” “We managed to track down the original prescription that clearly showed it was called in on Saturday and managed to convince the opposing attorney to drop the case,” says Davis. “Precision in documentation is important.”
• Physicians should be cognizant of the “audit trail” that is often being sought in discovery by plaintiff’s counsel to document who charted, and when they charted, in an electronic medical record.
Most computerized medical records contain an automatic “audit trail” showing when medical records were accessed, what entries were made, when any changes were made, and whether any entries were erased.
“If the audit trail does not correspond with the timing, narrative, and sequence of events in the chart, the plaintiff’s attorney will allege that the chart was altered or that the chart narrative is inaccurate,” says Lovering.
Plaintiffs’ attorneys will attempt to place late entries in the worst possible light, he warns. “To avoid the appearance of impropriety or worse, conspicuously date any late [written] entry,” he says. “Note that the reason for any late entry is to accurately document the patient’s care and condition.”
• If an error was disclosed to the patient, physicians should document this process.
If there was negligence involved in the injury or untoward outcome, settlement negotiations can take place early on without a lawsuit being initiated, says Kicklighter, providing more indemnity payment directly to the patient.
“In addition, disclosure starts the statute of limitations running,” she says. “Documentation of the disclosure meeting in the record can be influential when an attorney is considering the merits of a malpractice lawsuit.”
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