Consider these lessons from case of jailed surgeon
Documentation was put in the hot seat
(Editor's note: This is the second part of a two-part series on avoiding liability with documentation. This month, we cover the lessons that can be learned from the case of a surgeon who was charged and jailed regarding mistakes he made in the medical record that did not impact billing. Last month we discussed the specifics of the case.)
To avoid liability in outpatient surgery, ensure that providers' documentation is complete and readable, say sources interviewed by Same-Day Surgery.
"It is imperative that the documentation is legible, thorough, and factual," says Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM, of The Kicklighter Group, which is a Tamarac, FL-based consulting group that specializes in risk management, patient safety, infection prevention, and loss prevention in ambulatory settings.
This advice is timely considering the case of a surgeon jailed after mistakes were found in the operative report that did make a difference in the billing. John Natale, MD, of Chicago, a cardiothoracic and vascular surgeon, went to federal prison on charges related to operations on several patients performed nearly 10 years ago. Natale was acquitted of all fraud charges, but he was convicted on two counts of making false statements. Natale and the Association of American Physicians and Surgeons asked the Court of Appeals for the Seventh Circuit to reverse the conviction, but the conviction was upheld on June 11, 2013.
"It is a shame this case rose to the level it did; however, if physicians/surgeons follow the rules of full, thorough, legible, timely documentation and dictation with medical necessity included for all tests, treatments, procedures, and medication, they should find it easier for them in the long run," Kicklighter says.
Such documentation is imperative, Kicklighter says. "In discussions with physicians about legibility of or lack of handwriting, often it is commented that they get to interpret what they wrote," she says. "In a court action or other legal action, it is the jury who makes that interpretation."
In today's environment, legibility is important should records be requested for a Recovery Audit Contractor (RAC) audit or other governmental review, Kicklighter says. "In many instances, if the documentation justifying medical necessity are not legible, it is considered by some to not be documented," she says. "In other instances, when a record is requested for patient care, the next caregiver may not be able to read the entries that could result in a mis- or missed-diagnosis, or a delay in or duplicate care if tests are repeated."
Legibility will become less of an issue with conversion to electronic health records, but legible handwritten signatures still are important, Kicklighter says. "Signatures that are scribbles and undecipherable may be much easier to forge," she adds.
Consider these other suggestions:
• Have thorough documentation.
One of the first steps in a lawsuit is to request and review the medical record, Kicklighter points out.
"A thoroughly documented record may reflect that all tests and treatments, based on full medical and social history and physical exam, differential diagnoses, critical thinking thought-process steps, and medical justification for preliminary and final conclusions regarding treatment and diagnosis/diagnoses goes a long way to support compliance with the standard of care," she says. "When there are no omissions in the documentation in the steps of the process, often there is nowhere to assert a claim of omission or commission as a basis for a malpractice suit."
Documentation of the practice record in an office is just as important as in a hospital or ambulatory surgery center, Kicklighter adds.
• Ensure the documentation is accurate.
The surgeon's signature on a dictated surgical/procedure report indicates that the facts in the report have been validated and authenticated, Kicklighter says.
"There have been times when "L," left, and "R," right, have been incorrect, words misspelled, or blanks in the report that have not been corrected by the surgeon," she says. Such issues can be trouble, particularly if there is a lawsuit, Kicklighter says.
Another problem occurs when someone other than the surgeon who performed the procedure dictates the report, she says. "In these situations the surgeon who performed the procedure must take special care to carefully review the typed report to verify the specifics of that specific patient are detailed correctly," Kicklighter says.
• Accurate coding is a necessity.
Usually the government doesn't prosecute miscoding, particularly if it is unintended, as it was in the Natale case, says Stephen Trosty, JD, MHA, CPHRM, ARM, president of Risk Management Consulting Corp., in Haslett, MI.
"This [case] becomes even more absurd, and highly questionable, if this physician did not routinely miscode cases and this is an anomaly for him," Trosty says. "It definitely seems to run contrary to the intent of Medicare and the accompanying regulations as it relates to the imposition of fines, requiring the paying back or inappropriate reimbursement, or the loss of the right to receive Medicare reimbursement."