Practice Tips

In medical malpractice litigation, the defense of claims frequently rests on the quality of patient care documentation. When a claim goes to trial, it can be many years after the patient's treatment. Since memories can fade, objective, timely, and complete documentation is your best defense. To a jury, the quality of the documentation equates to the quality of the patient care provided.

The legal record is generally the information used by the patient care team to make decisions about the treatment of a patient. The elements that constitute an organization's legal health record vary depending on how the organization defines its legal record, but it must explicitly identify the sources and location of the individually identifiable data it includes. The legal record is typically used when responding to formal requests for information for evidentiary purposes.

Excellent documentation supports medical decision-making and serves as a communication tool for all care team members. It will justify reimbursement from third-party payers, protect against allegations of medical malpractice, and meet statutory, regulatory, and professional requirements for clinical and business purposes.

General Guidelines for Documentation of Patient Care

• Be timely, comprehensive, and objective.
• Authenticate, date and time entries.  Signature stamps used by support staff are prohibited, per CMS.
• Avoid slang or euphemisms, such as "drug seeker" or "frequent flyer." Instead, document clinical assessment and treatment provided.
• Use correct spelling and grammar. To a jury, inattention to such details may demonstrate inattention to the care of the patient.
• Ensure legibility, whether handwritten or electronic, documentation should be clear and easy to read.
• Avoid unapproved, personal, or informal abbreviations. Consider a policy defining acceptable/unacceptable/HIGH RISK abbreviations.
• Use specific language: Avoid vague terminology, generalizations, and subjective statements. For example, rather than documenting "wound looks good," document what you observed, "incision is healing, no redness, and no signs of infection."
• Ensure that electronic signatures comply with state and federal regulations.
• Ensure consistency in terminology and formats throughout the documentation to avoid confusion.
• Document after patient care is complete. Refrain from criticizing a previous provider's care. Document a factual summary of pertinent clinical findings and the rationale for your plan of care. Refer questions about prior care to that provider.
• When documenting difficult patient encounters, be objective and document the facts. Place statements made by the patient in quotations. Note actions taken by staff/physician and final resolution.
• When using transcription and speech recognition technology, carefully review transcribed documents and edit them as necessary. Prohibit notations such as "dictated but not read" or "I take no responsibility for the quality and validity of the information in this document."

Paper Record Documentation

• Be sure your documentation is legible, clear, and easy to read
• Each page of the paper medical record should be labeled with the patient's name and date of birth or medical record number.
• List patient allergies on the front of the medical record and appropriate pages of the medical record.
• Do not try to squeeze information in the margins or onto a line.
• Never use whiteout, write over, or erase an entry in a medical record. Instead, put a single line through the entry; write "error" and date and initial. Have a process in place to handle corrections or amendments.
• If it is necessary to add information to a medical record after the original entry, indicate the time and date of the updated entry and the original entry date.

Electronic Health Records

• Discourage the use of copy and paste function. Provide clear guidance to use the copy and paste function safely. If this function is used, ensure all the copy/paste documentation is accurate for the care you provide.
• Information added to an electronic health record can never be permanently deleted; it will always be retrievable in the metadata.
• Have strong policies prohibiting sharing passwords or sign-in information.
• Have a policy in place for error correction.

Essential Content: Ambulatory Setting, include the following:

• Reason for visit.
• Past medical and family history.
• Medication allergies and adverse reactions to medications or contrast media.
• Current and accurate medication list.
• Follow-up on previous problems and referrals.
• Documentation of patient nonadherence to recommended treatment plan. Document the discussion with patient vetting barriers and the explanation of consequences/risk for not following through and the patient’s acknowledged understanding of the consequences.
• Rationale for not proceeding with a specialist's recommendations.
• Clinical examination findings; positive and significant negative results.
• Plan of care; rationale for diagnosis or deviation from standards of care.
• Patient response to health maintenance recommendations.
• Patient education and understanding of follow-up instructions and treatment plan. Specify educational materials given to the patient. If the patient receives a hard copy of material that was printed from the EHR and this copy is annotated to add additional clarification, emphasize a section or delete a section, scan a copy of this changed form into the EHR to document the true copy the patient received.
• Ensure documentation of any follow-up actions or plans for the patient, including future appointments or referrals.
• Informed consent and informed refusal discussions.
• Signed consent forms.
• Any injections, immunizations or IVs given (including the name of the drug, dosage, route, site, time and date administered, name or initials of ordering physician, and name or initials of the person administering the drug).
• Review of diagnostic test results and consultations, treatment or action plan, and notification of patient.
• Failed appointments, including all attempts to contact the patient to reschedule.
• Treatment-related telephone calls, including after-hours calls. Call documentation should reflect clinical decision-making, support actions taken, and provide a safe care continuum. Note:
  • Patient name or person calling on behalf of the patient.
  • Date and time of the call
  • Specific complaint and symptoms described by the caller.
  • Advice/Treatment provided during the call.
  • Final disposition of the call and any referrals to other providers or facilities, including urgent care centers or emergency departments.
  • Name of the healthcare provider who took the call.
  • Follow-up actions or appointments scheduled, if any.

Amending a Medical Record:

It may be necessary to correct an entry in a medical record. Amending an entry could include correcting erroneous information, adding a late entry, adding information to a previous entry, or deleting incorrect information, such as documenting on the wrong patient. Develop policies and procedures on the appropriate steps to follow when amending your medical records. Never make changes to a medical record after receiving notice of a potential claim.

• Clearly indicate the date and time of the amendment.
• Ensure the original entry remains legible and unaltered.
• Document the reason for the amendment.
• Include the name and credentials of the person making the amendment.
• Follow your organization’s specific guidelines for electronic health records (EHR) amendments, if applicable.

Patient Request to Amend a Medical Record:

• Under HIPAA, patients have a right to request amendments to their medical records, and providers should determine if the changes will be made.
  • Develop policies and procedures to address requested amendments.
  • In accordance with HIPAA, act on the requests within 60 days of receipt of the request. A one-time 30-day extension is allowed. You must provide the patient with a written statement of the reason for the delay and the date the amendment will be processed.
  • If the request is granted, make the changes to the medical record and send a written, signed, and dated response to the patient within 60 days. Place a copy of the response in the patient's medical record.
  • If the provider denies the request, provide the individual with a written denial in plain language and include:
    • The reason for the denial.
    • The individual's right to submit a written statement disagreeing with the denial.
    • A statement that if the individual does not submit a statement of disagreement, they may request that their request and the denial be provided with any future disclosures.
    • A description of how they can make a complaint to the provider or the Secretary of the Department of Health and Human Services.
    • All documentation should be kept in the patient's medical record.

Adverse Events: When an adverse event occurs, the following information should be documented in the patient's medical record:

• Patient's condition immediately before the time of the event (if known).
• Medical intervention following the event.
• Patient response to medical interventions.
• Future treatment plans.
• See our practice tip, Disclosure of Adverse Events: Adverse Event Communication and Support, for more details on disclosure.

Digital recordings including videotaping, audiotaping, digital and still photography, and all other forms of digital imaging.  A digital image is considered protected health information (PHI) if it can be used to identify the individual.

• Develop policies addressing when and where digital recording is permitted and prohibited. Address unique work settings, such as the delivery room.
• Ensure policies include employees, patients, visitors, volunteers, and the media.
• Identify types of digital devices permitted by the organization.
• Specify what devices are appropriate for employees to use for clinical images. Prohibit the use of personal devices, such as cell phones.
• Obtain patient consent for digital recordings. This can be accomplished in various ways, including the general consent, notice of privacy practices, or a specific digital recording consent.
• Clearly indicate the date and time of the recording.
• Ensure the original recording remains unaltered and securely stored.
• Document the reason for the recording and the intended use.
• Include the name and credentials of the person making the recording.
• Follow your organization’s specific guidelines for electronic health records (EHR) and digital recordings, if applicable.

Assuring Quality Documentation Practices

• Educate staff and physicians on documentation expectations.
• Conduct internal chart audits to ensure documentation guidelines are followed and records are complete.
• Review printed copies before release to ensure all record elements are included.

References:

• Lorenzetti, R. C., et al. (2013). Managing difficult encounters: Understanding physician, patient, and situational factors. American Family Physician, 87(6).
• Teo, A. R., et al. (2013). How can we better manage difficult patient encounters? The Journal of Family Practice, 62(8).
• American Medical Association. (2006). Improving communications-improving care. JAMA: Journal of the American Board of Family Medicine, 19(6), 533-541.
• Teichman, P. (2000). Documentation tips for reducing malpractice risk. Family Practice Management, 7(3), 29-33. Retrieved from https://www.aafp.org/fpm/2000/0300/p29.html
• Code of Federal Regulations, 45 CFR 164.524, 164.526, and 164. 528 (2023)