Medical Malpractice: Documenting 101

“Document, document, document” is the usual refrain.

Actually, documentation is a perfect example of the Goldilocks Rule: There can be too much or too little, but then there is the amount that is just right.

When you create a medical record, you create a legal document that is, in fact, one of the exceptions to the Hearsay Rule in that it is an out-of-court statement that can be entered into evidence as proof that what it says is true. Therefore, as I say when I lecture on medical malpractice, “You want to say things in your words because otherwise I, as the plaintiff’s lawyer, will be saying them in mine.”

1. First, write a note that can be read.

As we move to full EHR this is less of an issue but still remember that you can end up being named in a case and deposed simply because your note, that would have otherwise explained your non-role, was illegible.

Since the only time you worry about documentation is when you either know that things have hit the fan or you suspect that they might, your first impulse will therefore be self-protection, and you will want to try to fill in every possible issue. This natural instinct will produce notes that are long narratives that go back into the past and are filled with extraneous facts  that themselves serve not to explain the patient’s condition but your own conduct.

That is why you have to restrain yourself. Otherwise, you will create a statement that stands out from the rest of the record like a very sore thumb and will have just told a plaintiff’s attorney or board investigator where to drill.

Your task is to document without editorializing.  Less is definitely more – as Joe Friday used to say, “Just the facts”. If a fact would not be in an ordinary note written when you were not concerned, then it does not belong in a note that you are writing under stress circumstances.

In fact, a “cool” note that fills in the gaps but does not elaborate beyond that actually shows that you are not personally sweating the situation.  This is important to the perception of the plaintiff’s attorney, hospital administrator or medical board member reviewing the file and, if the case goes further, to the attorney you will be looking to to protect your interests.

In other words, you are writing for everyone in your audience. No note, however well-written, will prevent you from being named in a lawsuit or complaint if you have a presumptive place in the sequence of events, but a note that does not put you center-stage by being elaborate and defensive will favor everyone understanding your role in a way that you want it to be understood.

2. Notes that strain to affix blame are flashing lights for an evaluator.

You may think that you are sending them off to follow the person whom you believe is responsible for the problem, but what you are actually doing is directing them straight to the events that most involve you.

Even if you see yourself as having had only a minimal role in the events or having been in no position to change them, if you are conceivably in the chain of causation or involved in the basis of a complaint you are going to be entered into the case and kept in it until your role is resolved. Therefore, if you are going to point a finger elsewhere, you had better have a response as to what you did to counteract the poor conduct of that other person.

A note about how a patient continually failed to take their medication or continually refused your best medical advice is no defense if you just continued to let that behavior go on while you watched the patient decline.  The fact that another physician gave very poor care to your patient is no defense if you were aware of that but did not at least contact that physician about the matter or suggest to your patient that they get a second opinion.

The next thing to remember is that when you do say something negative about a patient or a colleague, you need to tone it down. For example, non-compliance is clinically relevant even though it is also a negative statement about the patient.  However, it should be limited to that scope, not phrased as a defect in their character or a condemnatory statement that blames them for their own illness.

If the matter that you suspect may be a problem for you is not clinical at all and is only about a bad interaction with the patient, you must still apply the same rule because you have to come across as the adult. Therefore, avoid comments like “X screamed at my nurse and threatened to sue me so I told him to leave.” Instead, go with “X became agitated and threatening and was instructed that we would not be able to treat him while he was being disruptive”.  Bear in mind that you are only writing the note because you are anticipating that someday it may help you, and sounding antagonistic about the patient will never do that and, will in fact, make it more likely that you will be viewed poorly.

Documenting negative points about another physician should also be done with care. That is because, even if you are absolutely certain that you have done everything right, once you have established putative causation through your note you may still find yourself in the chain of liability.  You therefore want to report a fact but not point fingers in a way that makes your involvement appear central to the problem.

You also do not want to end up in a position where your own interests may be adverse to a party you depend on like your hospital or your practice group, which is exactly what happens when you write an overtly condemnatory note that implicates them even vicariously.

In general, then, the watchword is minimalism.  Even if you are literally enraged at being dragged into a situation due to the poor conduct of another physician, say not one word more than is needed to make the necessary clinical points and say it as abstractly as possible.

For example, if a colleague was supposed to follow-up on a matter and never did so, you want to avoid comments like “Despite having agreed to do so, Dr. X failed to provide the necessary information” because that only then puts you on the hook along with Dr. X because you did not follow up on so obvious a lapse.  Instead, say “Results requested from Dr. X’s office subsequently revealed …” Yes, Dr. X gets the benefit of that as well, but it is your skin that you really care about.

3. Most critically, do not even think of going back to change the pre-existing record.

As an officer of the court, I must inform you that it is a felony.

As a friend, I must inform you that it is a noose.

You will not be able to outsmart my legal brethren and sistren.  We have seen every attempt that you can imagine to alter a record without getting caught, and we are never fooled. In fact, you will have just destroyed your credibility even if what you put in is the gospel truth, and your insurer will most assuredly kick you to the legal curb.

What you do instead, if new material comes up that is relevant, is put in an addendum, titled as such, and, again, write it without editorializing.

4. Finally, what do you do if you know that you really were wrong and want to mitigate the problems that you know that you will face?

In this case, if the matter is serious and has the potential for litigation or a complaint, you should contact your insurance carrier first.   This is because most policies require you to inform the carrier of likely litigation or investigation before you take any action. They will then instruct you as to what they want you to do or not do in terms of the record.

If you are not under instructions from your carrier as to what to do, the best approach is to acknowledge the matter but to phrase it minimally. You cannot prevent the clinical lapse from being noticed but you can avoid drawing attention straight to it or boxing yourself in on how you will respond about it later:

(i) Never say “new” because the first question will be why it is new – why didn’t you know about it before?  Instead, use “Subsequent to (last visit, event, etc.) information was received that (fill in new stuff)…”

(ii)  Never admit to any woulda-coulda-shoulda.  Instead, use “Based on this additional information, the (findings) of (date) may have reflected (condition).”

(iii) Do not launch into a defense of your prior conduct.   Obviously, this is a red flag for the assessor of the case and will also be a goldmine when it comes time for a plaintiff’s attorney or an examining board to question you.

However, the real problem is that you actually do not have a good answer. This is the best reason to say as little as possible.  Your eventual advocate will have to deal with the fact that your conduct was not up to par.  Therefore, leave him or her the flexibility to proffer a defense without pre-limiting the matter by what you say in a note that you wrote while you were upset and fearful.

So, in summary, bear in mind that your notes are the first time that an evaluator of a problem situation will “meet” you.  They are, therefore, your chance to make a first impression that will carry through the rest of the assessment process.  If you document professionally, you will represent yourself well and set the stage most favorably for what will follow.

Dr. MedLaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.