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Typically, health care providers approach documentation with the goal of effectively communicating with themselves. The reality, however, is that depending upon many different circumstances, numerous other individuals may one day review a health care provider’s records for many different purposes and from many different perspectives. Records may be reviewed by other health care providers, billing personnel, patients, lawyers, insurance companies, governmental regulators (both federal and state) and in some instances, law-enforcement personnel. The old adage, “If it isn’t written down, you didn’t do it,” still rings very true, particularly in the medical malpractice context. The best way to counter an allegation that a provider failed to examine or check something is to point to the records that clearly demonstrate that the opposite is true. The necessity for complete, honest, accurate and legible documentation cannot be overemphasized. This being said, however, it is recognized that documenting every thought may at times be cumbersome and not altogether realistic. To make up for this practical deficiency, it is important to establish clear methods and procedures for doing business. These methods are sometimes referred to as a provider’s “standard operating procedure.” The procedures should be uniformly and consistently applied with each patient encounter. STANDARD OPERATING PROCEDURE Having a clear standard operating procedure that is consistently met can oftentimes fill in a missing detail from a documented record. By consistently complying with a standard operating procedure, a provider can knowingly, honestly and confidently represent later that while an item was not documented in a patient’s record, the provider is confident that such an item was considered or performed, as applicable, since as a matter of course it is something always done as per the standard operating procedure. Without having something documented or part of a standard operating procedure or routine, the above adage that “if it isn’t written down, you didn’t do it” will be the working presumption on the part of someone reviewing the record at a later date and will not rebut the allegation in the medical malpractice claim. Additionally, since at times a provider may be called upon to review and discuss a patient at a later date � whether at a deposition, trial or other forum � the record and standard operating procedure serve as good ways to refresh the provider’s recollection of the patient encounter. WHO MAY READ THE PROVIDER’S RECORDS? Certainly, the provider who made the record, as well as other health care providers involved in treating the same patient, may need to look over the records at a later date. Oftentimes, however, as stated above, others will on occasion review a provider’s records. There may be billing personnel reading the records in order to properly prepare a bill to submit to an insurance company, patient or governmental agency. Additionally, in today’s health care environment it is not uncommon for a managed care company or other insurance company, or governmental agency looking to ferret out health care fraud and abuse practices, to review billing records and patient records. An unclear record can lead to either an incorrect bill being submitted or a bill for which the record does not support the services being billed for. The ramifications for such a situation can be significant since the working assumption will be that notwithstanding the bill, if the service is not indicated in the record as having been provided, the bill is at best inaccurate and at worst fraudulent. In such an event, not only may the payor of the bill seek reimbursement of the amount paid, but a fraud report may be made with the relevant enforcement agencies. Additionally, in most jurisdictions the failure to maintain complete and accurate records may lead to charges of unprofessional conduct brought by the relevant licensing and/or disciplinary authorities. Another, and possibly more troubling circumstance for most providers is when third parties review patient records when a medical malpractice action has been filed, or the patient, the patient’s lawyers and his or her medical expert witnesses want to review the records to see if there is any merit in a potential malpractice action. In such instances the quality of the provider’s documentation can make or break a malpractice case. Proper documentation may even prevent the making of the claim for malpractice in the first instance. KEEPING RECORDS Legible, thorough and accurate notes cannot be overemphasized. A common misconception is that illegible notes reduce the risk in a malpractice action by obscuring evidence. Not only does an illegible note not provide protection, but attorneys and juries view them as evidence of sloppy care and a lack of professionalism. Legible notes detailing thoughtful and logical care provide the best defense in a malpractice action. To assist with medical record keeping, more and more health care providers are adopting electronic medical record (EMR) keeping. Electronic records eliminate the problem of unclear handwriting and often will guide the health care provider through a series of online fields or screens that help to create a complete record. Another pitfall in documentation is the altered document or entry. Erasures, obliterated words and missing sections can lead to severe consequences. On occasion an otherwise defensible malpractice case can be lost over evidence of what is construed as deceptive documentation. There are many methodologies available to determine whether a document has been altered, including handwriting analysis, infrared examination of ink and other tools. Not only can this result in a poor outcome of the malpractice action, but it can give rise to allegations of professional misconduct that may lead to the loss of liability insurance, loss of the provider’s professional license, and possibly even criminal charges. Notwithstanding these dangers, however, there may be times when an entry needs to be amended in some manner, or additional information needs to be added. When this is done, it should always include the date and time of the entry with an explanation as to why the information was originally omitted. If the addendum is a correction to an error, that should be stated. Additionally, if a prior copy of a record exists and is later compared to the original, which is now different from what it was, the negative inferences of such an alteration will be hard to overcome. If a genuine mistake in the record is made, the provider should draw a single line through the error, leaving the erroneous entry readable, and write the word “error” next to the mistake. Then, the corrected text should be inserted. Writing the date and time of such correction, with the provider’s initials next to it, will go a long way to dispel the notion that the records are being tampered with for the purpose of “covering up” a mistake or omission. Another important aspect of medical record keeping is privacy. The privacy portion of the Hippocratic oath states, “[W]hatsoever I shall see or hear in the course of my intercourse with men, if it be or should be published abroad, I will never divulge, holding such things to be holy secrets.” In a more contemporary statement regarding privacy, an American Medical Association statement says, “medical information must be confidential to the greatest possible degree.” In addition to pre-existing state and federal laws regarding patient privacy, effective as of April 14, 2003, compliance is now also required with the federal Health Insurance Portability and Accountability Act. Health care practitioners need to be diligent about their compliance with these standards, and about the compliance of those people and entities that the health care provider does business with. CONCLUSION There are many potential pitfalls that a provider can stumble into with respect to medical record keeping. The earlier the provider makes any necessary policy changes to ensure that accurate and comprehensive record are kept, the better off the provider will be in the future when he or she needs to rely on those records to defend or even prevent a medical malpractice action. Barry B. Cepelewicz, M. D., is a partner and Gary S. Sastow is of counsel at Meiselman, Denlea, Packman, Carton & Eberz in White Plains, N.Y. The authors can be reached at 914-517-5000, [email protected] or [email protected]. This article originally appeared in Medical Malpractice Law & Strategy, a Recorder affiliate.

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