In a medical malpractice lawsuit, the entire lawsuit – including the plaintiff’s allegations as well as the physician’s defense – is structured around the patient’s medical record. It has been proven beyond doubt that a well-written note can go a long way in formulating a good defense against lawsuits. Your documentation is not only a piece of communication with the interdisciplinary team, it is a reflection of your thought process and logical reasoning that led you to adapt a particular treatment approach.
According to a 2017 Medscape Malpractice report, most physicians cited better chart documentation as the one thing in hindsight that would have avoided the lawsuit. From a practical standpoint, good documentation is as important in defending a lawsuit as is good communication in preventing one.
Traditionally, the way we are trained and the way we practice have been different. During residency training, when it comes to documentation, much attention is focused on accuracy and details within the note, with little impetus to improve the documentation from a medico-legal defense standpoint. The same goes true for practicing physicians; a large amount of emphasis is placed on structuring a note in accordance with regulatory and compliance requirements, whereas there is no incentive to spend time in improving documentation from a medico-legal standpoint.
Given the importance of appropriate documentation, it only makes sense that we incorporate some simple rules into our routine in a way that excellent documentation becomes a habit. Practicing these routinely will not only enhance the communication with in the care team but will also serve as a brick wall of defense when it comes to a lawsuit.
A surprisingly uncommon term used to describe this is called Defensible Documentation, which basically implies that the documentation should be able to justify and support that the quality of care provided was reasonable and appropriate. And the three most crucial elements of a highly defensible note are:
- Internal Consistency
Completeness refers to incorporating all clinically relevant information within the note. This includes not only all diagnoses along with their treatment plans but also includes our logical thought process and the reasoning behind doing certain things in a certain manner. This all goes far beyond meeting the criteria set aside by CMS for billing requirements.
A common misconception among physicians – especially hospitalists – is that documenting three or four major diagnoses to meet a certain level of acuity serves this purpose. While this is true for billing, missing out medically relevant information in a progress note can lead to serious trouble when it comes to a lawsuit.
A hospitalist recently encountered a classic example of this situation at a large tertiary hospital; this hospitalist was treating a critically ill patient for Septic Shock. Two days into the course of treatment, the patient developed Atrial Fibrillation, following which, Cardiology was consulted, and the patient was started on a Heparin drip. The hospitalist, however, forgets to add this new diagnosis as well as the treatment plan into his progress note, which is copied as is by the new hospitalist taking over the following week. The patient subsequently passed away from complications related to bleeding; when the chart was reviewed, the first question that was asked was:
“Were you even aware that your patient was on a Heparin drip? It’s not mentioned anywhere in your note.”
Questions such as this will be very difficult to defend if there is missing documentation from our end. We can sometimes get extremely busy, which can lead to complacency, but if we do not pay meticulous attention to completeness, a lot of time will be spent dealing with the consequences.
Not only that, during a trial, which can be months or years later, it will also it be difficult to effectively recall the events if the documentation was inadequate or missing key elements.
The next important element, Accuracy of the documentation, involves multiple elements and goes hand in hand with completeness. While most physicians do not intentionally enter incorrect information into their notes, the failure to mention the most updated test results or diagnoses will inevitably be linked with the quality of care provided. Including outdated or incorrect information in a progress note simply implies lack of attention to detail on the part of the physician, which in turn affects his or her credibility during a deposition or a trial. Simple things, like poor grammar, can sometimes be used to shred our credibility into pieces in order to make our defense look weak.
The final and the most important element in my opinion is the Internal Consistency within the notes, which means that the information presented under one segment of a note should be consistent with the information presented in another segment. If there are elements of our note that are conflicting, it undoubtedly sets us up for trouble during a deposition. For example, documenting that a patient had a normal neurological exam with intact cognition under the physical exam, and subsequently adding Advanced Dementia as one of the diagnoses is clearly a conflicting scenario. Situations like this can open up the ability of the physician to evaluate and treat a patient for questioning and pose a huge threat to the physician’s credibility in general.
Even though the above three elements can be considered as the more important elements of documentation, there certainly other simple principles that can be applied across the board, which can be very helpful.
Documenting our discussions with families regarding advance directives and those related to side effects of important medications, such as anticoagulants, is very important. Likewise, it is also crucial to document a patient’s understanding of the consequences in case an appropriate treatment plan is rejected.
At its best, the medical record should formulate a clear and a complete plan that legibly communicates pertinent information. Effective documentation captures these steps in a format that may derail erroneous charges or immediately exculpate the wrongly accused. It not only credits competent care but also forms a tight defense against allegations of malpractice by aligning the patient and physician expectations.
Conclusion: Are your notes defensible?
A well-documented note can come in handy should we ever face a malpractice situation and have to justify what was done in order to defend our actions. Conversely, incomplete or inaccurate documentation leaves us more vulnerable and puts us in a tight spot.
An average hospitalist has over 2500 encounters in a year. The probability of being sued is low enough, such that the benefits are not apparent in real-time. However, thorough and thoughtful documentation can vaccinate against future lawsuits. Guarding against a lengthy litigation process, proper documentation may be the ultimate time saver.