Documentation Dos and Don'ts Can Derail a Lawsuit


CABO SAN LUCAS, MEXICO — What you put in a patient's medical record could drive a potential lawsuit to court or away from litigation, Dennis J. Sinclitico, J.D., said.

“You can't control the labor and delivery. The one thing you can do is control what appears in the medical record,” he said at a conference on obstetrics, gynecology, perinatal medicine, neonatology, and the law.

The biggest problem he said he sees in documentation is incompleteness—charts that lack important information about the physician's role, decision-making process, and justifications for management.

Many physicians complain that they don't have time to write sufficient records, said Mr. Sinclitico, a defense attorney, in Long Beach, Calif. “Would you rather spend the time in court for 12 weeks, 5 days a week, from 9 a.m. to 5 p.m.?” he asked.

Adequate documentation may be less than physicians imagine. Writing “Matter was discussed with patient” is better than saying what you discussed, because you risk leaving something out of the record. Writing “Exam was done” or “Doctor was notified” is better than giving details because these statements free you to add details orally later if questioned, he said at the meeting, sponsored by Boston University and the Center for Human Genetics.

Rules concerning medical documentation may differ somewhat from state to state, he said, but the following do's and don'ts will help create records that should help offset potential lawsuits:

Don't destroy evidence. No matter how bad the fetal monitoring strip looks, resist the urge to make it disappear. In some states, destroying a record is an added offense, exposing you to additional liability.

Don't ever change the record. “It's simple advice, but I see it happen over and over again,” Mr. Sinclitico said. Sophisticated technology can detect alteration of records. In some states, changing a record is an added offense.

Do label any addition to the chart as a “late entry.” Late entries are common when there's a good reason why the physician can't adequately document things as they happen, such as being busy with the patient's care. Ideally, wait and do all the documentation as a late entry once you're able, rather than writing some contemporaneously and adding some later.

“To the extent that it's a self-serving addition, the lawyers will hammer you with it. To the extent that it attempts to be objective about what occurred and the timing of what occurred, then it's appropriate,” he said.

Do time and date your entries in the record. Chronicity is very important in reconstructing how things happened. Don't rely on memory; recall is faulty.

Do include significant positives and negatives from the patient's history and physical exam. “To the extent these form a basis for clinical judgment, they better be on the chart,” he said. Often records lack any mention of the history, or references to the history are illegible.

Do indicate that you reviewed the laboratory data and the fetal monitoring strip. Physicians frequently neglect to note these things in the record.

Do describe your management plan well. Provide enough detail to support the orders you give.

Don't editorialize about the patient or anyone else. Personal comments are a prescription for legal disaster, he said.

Don't add risk management comments like “There weren't enough beds available.' Most institutions use a report of unusual occurrence or a similar form to gather risk-management information. Put your comments there, and they're unlikely to be accessible to lawyers.

Don't include peer-review comments. Saying things like “Dr. Jones failed to arrive in a timely fashion” is probably going to get Dr. Jones and you in legal trouble. “If it's a matter that you feel strongly about, and it requires peer-reviewed evaluation, use the appropriate hospital committees to take that matter up,” Mr. Sinclitico advised.

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