How Will Your Medical Documentation Hold Up in Court?

In a medical malpractice trial, the outcome often depends on whether the jury believes the defendant or the plaintiff. The medical record can play a major role in swaying the jury one way or the other. Depending on what it reveals, a medical record can be your best friend or your worst enemy. It’s important that you make sure your documentation will hold up to scrutiny.

If It Wasn’t Charted, It Wasn’t Done

Medical records are extremely important. They need to be thorough and accurate. In fact, healthcare professionals are often warned that: “If it wasn’t charted, it wasn’t done.”

There are good reasons for this warning. First, although many pieces of evidence may be submitted during a legal proceeding, the medical record is often the most credible piece of evidence. If the medical record does not back up your claims, and support the care that was provided, it may be your word against the plaintiff’s.

Second, depending on the state in which they are filed, medical malpractice cases may be litigated for many years after the event occurred. This time lag can make it difficult to recall details clearly. The medical record makes it possible to reconstruct the patient’s course of treatment and provide evidence that the care you provided was reasonable — but only if the record is accurate and thorough.

Third, plaintiff’s lawyers in medical malpractice cases use the medical records in multiple ways — to establish the duty of care, to determine the extent of the injuries or damages suffered by the plaintiff, or to identify responsible parties. They can also use the medical record to create an inference about the quality of care. If the documentation contained in the medical record is poor or substandard, it is easy to create an inference in the mind of the jury that the care provided to the plaintiff was also poor or substandard.

The Fundamentals of Documentation

Medical record content must meet the requirements established by state and federal laws and regulations. Additionally, medical records should demonstrate the following fundamentals:

• Legibility: With the switch to electronic records, legibility is less of an issue than it used to be. However, if your organization uses handwritten or hybrid records, legibility is still important. You might remember what you wrote a few days after the fact but be unable to read your own handwriting years later.
• Accuracy: Inaccuracies can impact patient safety and the outcome of a malpractice lawsuit. The use of unapproved abbreviations can lead to confusion, misinterpretation, and inaccuracy. Features in electronic records systems (including copy-and-paste functions, dropdown menus, and auto-populated fields) can also contribute to inaccuracies.
• Objectivity: As patients have the right to view their records, objectivity is critical. Medical records should stick to factual information and avoid phrases that convey judgment, reflect doubt, are conclusory, or are subjective.
• Timeliness: Entries must be timed and dated. If a delay occurs between the administration of care and the documentation, information may be missing. An attorney could use this to argue that care was delayed.
• Authentication/Attestation: The medical record is subject to scrutiny during legal proceedings and allegations of alterations are serious. Never whiteout or blackout an entry. Corrections to handwritten notes should be made with a strikethrough and initial. In addition, you should make addendums in real time and note them as addendums. Attestation (or applying a signature to the entry) demonstrates intent, reveals the identity of the writer, and bolsters the integrity of the note.

Documentation Practices That Create Risk

Certain documentation practices can open the door to liability, such as:

• Documentation shortcuts. Widely used Electronic Health Record (EHR) shortcuts such as copy and paste, templates and drop downs can all lead to documentation inaccuracies. These inaccuracies can not only impact patient safety but can expose organizations to regulatory action as a result of incorrect billing.

• Failure to document negatives. Some cases hinge on negative findings, so it’s critical to document them. Some examples of negative findings are absence of pathognomonic symptoms, non-compliance, no-show appointments, no-answer calls, and the lack of pain, distress, or other symptoms.
• Adverse events. Adverse events require careful documentation. Include objective details, but do not admit error, blame others, alter the record, destroy evidence, name a second patient, or reference an incident report in your documentation.
• Informed consent or refusal. Many medical malpractice cases include a claim of lack of informed consent. Without documentation of the informed consent process, it’s one person’s word against another’s. In addition to documenting the informed consent discussion, obtain the patient’s signature on an informed consent or refusal form.
• Inflammatory documentation. Documentation should be objective. It should not include inflammatory or negative comments about the patient or other providers.

The goal is to avoid medical malpractice claims. However, if a lawsuit occurs, the quality of your documentation may determine the outcome.

This article is based in part on a Coverys’ presentation “Documentation: How Well Would Yours Hold Up in Court?” by Marlene Icenhower BSN, JD, CPHRM.

Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.