More on social entropy

More on psychiatric documentation

Dr. Joshi’s helpful discussion of clinical documentation strategies (“Medical record documentation: What to do, and what to avoid,” Current Psychiatry, October 2022, p. 46, 48, doi:10.12788/cp.0292) incisively frames the medical record as a multiuse tool for both ensuring continuity of care for the patient and demonstrating adherence to the standard of care by the clinician. In a similar vein, I hope the following general medicolegal observations may prove useful to busy psychiatric practitioners.

The mental health record may not always be as confidential as psychiatrists think (or hope) it is. The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, for example, generally does not distinguish between medical and mental health information, nor does it provide special rules for the latter (although certain state laws may do so). HIPAA provides added protections for “psychotherapy notes,” but this category explicitly excludes progress notes that discuss treatment modalities, diagnosis, and clinical milestones. To retain their protected status, psychotherapists’ private, “desk-drawer memory joggers” must never be comingled with the patient chart.¹ For mental health professionals, this distinction underscores the importance of keeping personal details broad in the progress note; scandalous or embarrassing narratives recounted in the medical record itself are routinely accessible to the patient and may be lawfully disclosed to others under specified circumstances.

In addition to avoiding speculation and including patient quotes when appropriate, documenting objectively and nonjudgmentally means annotating facts and observations that helped the clinician arrive at their conclusion. For example, “patient appears intoxicated” is less helpful than noting the patient’s slurred speech, impaired gait and/or coordination, and alcohol odor.

Clinical care and its associated documentation are so intertwined that they can become virtually indistinguishable. In a medical malpractice case, the burden is on the plaintiff to prove their injury resulted from substandard care. Some courts, however, have held that missing or incomplete records can effectively shift the burden from the recipient to the provider of care to show that the treatment at issue was rendered non-negligently.² Statutes of limitations restricting the amount of time in which a patient can sue after an adverse event are sometimes triggered by the date on which they knew or should have known of the alleged malpractice.³ One of the best ways of ascertaining this date, and starting the statute of limitations clock, can be a clear annotation in the medical record that the patient was apprised of an unanticipated outcome or iatrogenic harm. In this way, a timely and thorough note can be critical not just to defending the physician’s quality of care, but potentially to precluding a cognizable lawsuit altogether.

Charles G. Kels, JD

Defense Health Agency

San Antonio, Texas

Disclosures

The views expressed are those of the author and do not necessarily reflect those of any government agency, nor do they constitute individualized legal advice. The author reports no financial relationships with any companies whose products are mentioned in this letter, or with manufacturers of competing products.

References

1. 45 CFR Parts 160 and 164, Subparts A and E.

2. Valcin v Public Health Trust, 473 So. 2d 1297 (1984).

3. US v Kubrick, 444 US 111 (1979).