Charting consisting solely of checkboxes is a thorn in the side of ED malpractice defense attorneys. “It creates some real problems in terms of documentation, which is the ‘story’ for what happened during the care at issue,” says Jesse K. Broocker, JD, an attorney at Weathington in Atlanta.
The first problem is checkboxes inevitably create discrepancies in the medical record. A common example is with a required field of “similar to typical chest pain.” Sometimes, there are just two options — yes or no. “But what if this is acute onset new chest pain? If you check ‘not typical chest pain,’ it looks like you’ve contradicted yourself,” Broocker cautions.
Many EPs rely on templates to fill in the chart quickly and easily, in lieu of going through every system during the physical exam. “It streamlines having to fill in a bunch of superfluous information,” Broocker admits. “But if you become too reliant on that, you inevitably will create discrepancies.”
At deposition, the plaintiff attorney can ask the EP defendant, “Your neuro exam was all normal, but the chief complaint was headache. How is that possible?”
By calling attention to things like this, plaintiff lawyers can argue the sloppy charting also reflected subpar care. “Checkboxes create rushed charting and a dereliction of attention to the narrative boxes,” Broocker says.
Many ED charts contain just one or two brief sentences in the history or disposition notes. It does not tell the story of the ED visit. “Lawyers can tell if you just plugged in an algorithm vs. actually documenting specific to the patient,” Broocker says.
Broocker cautions against using auto-templates in any capacity outside the most routine care (e.g., a twisted ankle). “It is usually in the context of rushing through the patient,” Broocker observes.
EPs say they use auto-populated templates because the exam was normal, but plaintiff attorneys point out how little time was spent charting on the patient. Timestamping shows when the EP started and stopped documenting. “It’s simple math at that point. ‘The doctor was bedside at 10:01, the note was opened at 10:06 and completed at 10:08. There is no way they performed a sufficient exam on my client,’” Broocker says.
Broocker notes that instead of checkboxes, EPs should tell the story in substantive sentences. The disposition note should state what the EP saw, what he or she was thinking, and why. “If the documentation shows that, we have a leg up,” Broocker offers. “We are in a good position to tell the jury, ‘We tried, and we were thoughtful.’”
The ease of checkbox charting “requires provider attention and care in order to avoid potential exposure to a malpractice claim,” says Elizabeth A. Harris, an associate attorney in the Health Care and Life Sciences practice in the Washington, DC, office of Epstein Becker Green.
In malpractice cases, the ED medical record is a critical piece of evidence. The chart establishes whether the EP met the standard of care. The statute of limitations for medical malpractice cases ranges anywhere from one to five years, depending on the state. EP defendants testify about a patient from years ago. “The treatment in question may have been provided on a single occasion in a busy ER,” Harris notes.
EP defendants typically do not have an independent recollection of individual patients. Instead, they rely heavily on the chart when testifying. Details about the patient’s care can make or break the outcome of a claim. Checkboxes are not going to jog anyone’s memory.
“Lack of individualized detail can make describing the patient’s treatment more difficult for both the physician defendant and the expert witness,” Harris says.
Checkbox charting complicates the defense of any medical malpractice claim, but there are other problems. “It can also present issues from a regulatory and reimbursement perspective,” Harris warns.
To receive reimbursement from Medicare and Medicaid, the medical record must support the level of service provided and demonstrate medical necessity. “The use of checkbox charting can present the risk of a claim that the charting does not support the level of medical necessity required for reimbursement,” Harris says.
This can lead to audits, investigations, or even False Claims Act liability, with possible hefty penalties. Harris recommends EPs clearly document their medical decision-making and provide individualized and detailed narratives to clarify or explain information, especially when pertinent to the patient’s chief complaint. For example, it is not enough to check the appropriate boxes for a chest pain patient. An individualized narrative about the cardiac exam performed and the results is needed.
Make sure the ED uses modified templates to allow EPs to add free-form text. Carefully review the record for accuracy before signing the note (including automatically populated checkboxes), either contemporaneously or close in time to the encounter. Finally, maintain a strong compliance program with regular medical record audits, including a review of electronic health record systems.
“This can improve clinician documentation, defend against medical malpractice claims, and decrease the risk of liability related to fraud and abuse,” Harris says.