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Published in Bariatric Times, June 2007

Malpractice Preventative Maintenance:


Record Protocols and Happy Lawyers

Julie M. Janeway, BBA, MSA


Attorney at Law
LV Medical/Legal Consulting & Training

Sources of Financial Support: None


Word Count: 2,494

Copyright Holder: LV Medical/Legal Consulting & Training


Published in Bariatric Times, June 2007

Malpractice Preventative Maintenance:


Record Protocols and Happy Lawyers
Julie M. Janeway, BBA, MSA, ABD/PhD
Attorney at Law

Malpractice cases are, unfortunately, a guaranteed side-effect of practicing

medicine or working in the health care field. It’s not IF you get sued, it’s WHEN you get

sued. When you get sued you will inevitably have to scrounge up every record that ever

even came in contact with your patient or his records, as well as every person who did the

same. “The medical record creates a legal document which reflects the care provided to a

patient and, in a courtroom setting, it may be likened to a witness whose memory is never

lost.” (1) Your defense attorney will need those records to determine what was, and

potentially more importantly, what wasn’t done.

In fact, your attorney isn’t the only person that will make that determination. Of

course the plaintiff’s attorney and legal team will get a crack at the records. The claims

analyst at the insurance company will review the records, the expert witness swearing out

any necessary Affidavits of Meritorious Defense (2) will review them, attorneys for other

defendants in the case will see them, the attorney’s paralegals, financial and medical

experts, and other witnesses and deponents will also go through the records carefully.

So, the records are a major player in any malpractice case.

The plaintiff’s attorneys are looking for anything unusual, out of the ordinary, and

hopefully dead outside the standard of care. Defense attorneys are looking for meticulous

records that exonerate the defendant(s) and show that it was just another case of bad

things happening to good people, not bad people happening to good people.
Published in Bariatric Times, June 2007

So what makes a defense lawyer happy when reviewing medical records in a

case? Here’s a list of things to remember and go over with your staff so WHEN you have

that case pop up, you have a very happy lawyer. Remember: happy lawyers mean happy

doctors! Happy doctors mean happy people who work with happy doctors!

• Keep contemporaneous records and be able to testify under oath that they were

contemporaneous. Don’t play catch up on your charting. We all hate charting.

Lawyers do it too, except we call it billing. It’s extremely important to chart each

patient as you go, not do them all at the end of the day, or worse, at the end of the

week. You need to get down all the details while fresh in your mind, not when they

become clouded by many other experiences through the day or week. You must be

able to testify under oath (that means truthfully!) that you charted this while, or

almost while it was happening. (3)

• Get dictation done quickly, actually review it, and get it into the file quickly.

Making sure that dictation is typed quickly is not usually the problem. Generally, if

you’re dictating during, or right after seeing a patient, the transcriptionists are getting

to it within 48 hours. The big problem tends to come when the transcription is

returned. The medical professionals who dictate the record entry often never review

it for accuracy, or to fill in blanks left by the transcriptionist when something was not

understandable. After failing to receive reviews or corrections, the transcripted report

often ends up in the filing basket and doesn’t see the file sometimes for months.

Review your transcription, make necessary changes or corrections, file continuously,

and don’t let it pile up. The only way to eat an elephant is one bite at a time. Don’t
Published in Bariatric Times, June 2007

let what is a series of small jobs turn into one big job you can’t seem to handle and

don’t want to deal with.

• Legibility. Make sure that others can read what you’ve written. Lawyers can’t

dispute it or defend it if they have no idea what it says! Most of the time when

attorneys ask docs or other medical professionals what they scrawled across the page,

they can’t read it either! That’s a problem, and the plaintiff’s attorney will jump all

over that. Juries don’t like it either. It makes the medical professionals look lazy,

uncaring, unprofessional, incompetent, and even stupid. That’s hard to counter, and

exactly what a plaintiff wants the jury to think. (4) Don’t play into their hands.

PRINT everything if medical training has ruined your handwriting. Always

remember: a judge and/or jury may see anything you ever write, so don’t tick off the

mind you’re trying to persuade by making it hard to read what you wrote. It’s the

same theory that applied in college with exams. If the Prof couldn’t read it, how were

you supposed to get the points for the answer? PRINT or WRITE clearly!

• Clearly label the chart and use appropriate writing materials. Every page of the

chart should be clearly and accurately labeled with the patient’s complete name and

medical record number. Individuals making entries into the chart should use pen

rather than pencil, which can fade or become illegible, and create a presumption that

the information was changed. Use ballpoint pens or the like rather than felt tips or

fountain pens which can leak through the paper and cause bleed through over notes

written on the opposite side of the page, or on adjoining pages. (1)


Published in Bariatric Times, June 2007

• Put the year on dates in records. As many physicians see patients over a series of

years, please be sure to put the year on any date entries in the record. If a patient is

seen on December 10, 2004, and then not seen again until December 15th, 2005, but

comes in with a similar issue, say low iron, it may appear in the record that the patient

was seen on one day, and then returned for a follow up or secondary appointment 5

days later, when in fact the patient was seen a whole year later for a separate incident

altogether. Just stick the year in and make it easy on all the legal staff….

• Please don’t use colored pens or highlighters. When you are charting zillions of

entries a day, we realize it gets boring writing in black or blue ink and that red, green,

pink, or purple are a little more fun, but please take pity on the people who may see

these records years down the road. Colored inks tend to break down after time, and

often do not copy well. Clear copies of the record are extremely important, so please

don’t make it harder to defend your position. Similarly, if you are highlighting

something in the record, please only use yellow highlighters. Colored highlighters

obscure or even block the text underneath when copied. Yellow highlighters do not

copy at all. We’d rather take the original record and hand highlight the copies to

accurately reflect the original record than to try and mess with lightening and

reproducing pages that are obscured by dark highlighters. The plaintiff’s lawyer

always makes a big deal about not being able to read the record, and often makes

allegations that the defendants were trying to hide something. Finally, never use

pencil…it just begs for someone to claim the record was changed.
Published in Bariatric Times, June 2007

• Use standard charting symbols. Please do not make up your own charting symbols

unless you clearly mark in the front of the chart what the symbol is and what it stands

for. For example, there is no standard charting symbol for “bruising.” If you want to

develop one, say ♫, that’s okay. Simply note it (no pun intended) in the front of each

chart so that other readers will know that symbol means bruising. If you want to use

♥ to represent the term “nutritionally deficient” then make a note of it prominently in

the file. The use of standardized charting symbols by all personnel is highly

recommended. Please don’t make your lawyer, or any of the others who will read

that chart or records, find their secret decoder ring in order to figure out what you’re

talking about. (4)

• DN u obr abbtn !!! What does this mean???? It means: Do Not Use Obscure

Abbreviations!!! Similar to not making up your own charting symbols, is the concept

of not making up weird abbreviations for words that might be particular to your

practice or geographic area. Again, we don’t have time to find our secret decoder

rings! If you deal with unique words or identifiers and you want to abbreviate them,

please leave us a clue in the front of the file as to what you’re referring to in the

abbreviation.

• Accuracy. Please be very accurate in what you write. This should go without

saying, but unfortunately it can’t. Say what you mean, and mean what you say. You

may have to defend what you’ve written, and depositions can go round and round for

hours over the incorrect use of a word, or the inaccurate use of a word or phrase. If

you mean “a patient should be monitored weekly for further developments of this

condition” but write “we’ll just wait and see” you can see how a plaintiff’s attorney
Published in Bariatric Times, June 2007

would jump all over that, and so would a jury. Please take the extra four seconds it

will take to write exactly what you mean in the records.

• No late additions, deletions, or amendments without detailed notation as to why.

If you must add to a record, amend a record, or goodness forbid, delete something

from a record, you need to leave a detailed explanation about who, what, when,

where, why, and how that change was made. Accurately and legibly write, date, and

sign the notation. These are exactly the types of issues juries jump all over. You

should always note that the change was made to increase the accuracy of the record.

Changing a record without notation as to who, what, when, why, where, and how is

pretty much a kiss of death in a malpractice or licensing defense case because it

creates a virtually unrebuttable presumption that the person making the change was

doing something sneaky, underhanded, illegal and/or sinister. It’s pretty hard to

redeem the character of that person at trial or hearing no matter how good their

intentions may have been. (3)

• Make sure signatures and initials are clear. Please make sure that whoever signs

the records has been clearly identified. It is so hard to figure out who needs to be on

the witness list when you can’t figure out who had their hands on the records. In a

day and age when malpractice suits can come up years after charts and records are

made, it is very important that we be able to identify who signed particular entries.

It’s hard enough finding people we can identify given the very transient nature of

medical personnel, let alone the ones we can’t identify at all. The one person we

can’t find or identify may the one person on whom the entire defense case rests. If

you notice a signature or initials in a chart or record that seems illegible, be sure to
Published in Bariatric Times, June 2007

note somewhere the name of the individual and then sign your name and date the

entry. Someone down the road may thank you profusely for saving their career or

their reputation. (3)

• Note consecutive pages to eliminate presumption that pages were re-ordered or

altered. If a report or series of entries such as nursing notes or patient encounters

goes longer than one page, simply note that page number at the bottom or top. If a

dictated report in its entirety is say, 6 pages, each page should say 1 of 6, 2 of 6, etc.

It’s a simple thing to eliminate doubt about additions, deletions, or alterations of the

record.

• Use or create a standard charting or reporting format for your office or

department. Many standard charting or reporting formats already exist such as

SOAP notes, or HEENT formats, or H&P formats. Discharge instructions are usually

formatted, as are surgical reports. Office charting formats for particular specialties

also exist, but if you aren’t using these existing formats, then simply create your own

and make sure everyone in the office uses the same format and uses it consistently.

Everyone charting differently creates a presumption of chaos and miscommunication.

That’s not an issue that you need to be adding or defending when a case may be

clearly narrowed to one specific standard of care issue that can be easily resolved.

• Noting patient affect, demeanor, and avoiding libelous statements. It is very

important to note patient affect, demeanor, and attitude in charts, even for dietitians,

but a fine line exists between noting these characteristics and behaviors and making

libelous statements. To review, libel is a defamatory statement made in writing

without regard for its truth or falsity. (5) Being accurate in your charting and saying
Published in Bariatric Times, June 2007

what you mean and meaning what you say should take care of a lot of this, but be

careful about letting your own emotions dictate what your write. If a particularly

belligerent and abusive patient gets your hackles up, be sure not to note that the

patient was “being an a__hole,” “came in with a chip on his shoulder like we all owed

him everything,” or “expected us all to kiss his backside like he was the only patient

on the planet.” These statements, while they may be somewhat true, can be claimed

as libelous because it was known that others would see them, and create a

presumption that the patient didn’t get the care he deserved despite his nasty attitude.

Point for plaintiff. Be very clinical in writing about affect, demeanor, attitude and

behavior. Write like you only watched it through a window and it didn’t really

happen to you. Limiting statements to objective observations of what you saw, heard,

smelled, and physically felt or touched will aid in this effort as well. Put your

emotions away and write about it clinically. (1) That will help tremendously. Thanks.

• Finally, write only what you did or did not do, not what others tell you to write

about your actions or performance. Again, this should go without saying but it

can’t. If you are charting or creating records, you are responsible for the content of

your notations. Although the doctrine of Respondeat Superior makes your superiors

responsible for your actions and performance as well (5), that doesn’t necessarily take

the heat off you entirely. If you are ever instructed to record that you did something

when you didn’t, or didn’t do something when you did, you must be willing to put

your job on the line in order to stand your ground and refuse to make false entries.

As one of my favorite law professors used to tell us, “you have to carry a toothbrush
Published in Bariatric Times, June 2007

with you at all times as an attorney and be willing to take it with you to jail if you are

found in contempt of court in the zealous representation and defense of your clients.”

As medical professionals who may work for corporations or individuals that may hold

your jobs as blackmail to get you to falsify medical or billing records, you must

always be willing to walk away from that job rather than falsify or be a part of

falsifying any records of any type. You are charged with the care of human beings,

and that even includes the billing for their care, and you should never put yourself in

a position that will make you have to lie on the stand about your own record entries,

actions or performance, or those of others. In the law we have a word for that. It’s

called perjury (5), and it’s a felony in every state in the union. Be willing to walk

away from your job, but unlike us lawyers, you should not be willing to go to jail for

your employer or any other superior. You’re job won’t be there when you get out.

That. I promise you, is true.

On behalf of my brothers and sisters-in-the-law, I thank you for your time, consideration,

and anticipated cooperation in these matters.

1. Medical Record Documentation. Risk Management Handbook. Yale-New Haven


Hospital & Yale University School of Medicine Web site. 1997. Available at:
http://www.med.yale.edu/caim/risk/handbook/rmh_medical_record.html. Accessed
March 15, 2007.

2. Some states require the defense to file an Affidavit of Meritorious Defense or some
such similar document. This type of document is signed by a health professional the
defense attorney reasonably believes meets the requirements for an expert witness under
the applicable statutes. It generally certifies that a health professional has reviewed the
complaint and all medical records supplied by the attorney concerning the allegations
contained in the complaint, states a factual basis for the defense against each complaint,
the applicable standard of practice, how compliance was made, and how the claim is not
Published in Bariatric Times, June 2007

related to the care and treatment rendered. For example, see Michigan Compiled Laws
600.2912e.

3. Legal Documentation Standards in Medical Records. American Health Information


Management Association Web site. 2007. Available at:
http://www.ahima.org/infocenter/guidelines/ltcs/5.1asp. Accessed March 15, 2007.

4. Overcoming Documentation Barriers. Hospital Payment Monitoring Program. Texas


Medical Foundation Web Site. 2006. Available at:
http://www.tmf.org.pepp/docbarriers.html. Accessed March 15, 2007.

5. Black, HC. Black’s Law Dictionary, 6th ed. New York, NY. West Publishing
Company; 1992.

GENERAL REFERENCES AND FURTHER READING

Micheletti, JA, Shlala, TJ. Documentation Rx: Strategies for Improving Physician
Contribution to Hospital Records. Journal of AHIMA 2006; 77(2): 66-68.

Ellison, J, Beldner, R. Hospital Records: What Do They Tell Us? National Forensic
Center – The Expert and the Law 1984; 4(5): 2.