Improve Documentation for Compliance, Med/Mal Defense
Documentation must be complete and accurate for several reasons. Risk managers should help clinicians adopt best practices for documentation.
- Expanded patient access to medical records creates an obligation to document clearly.
- Documentation is critical for third-party reimbursement.
- Electronic health records can improve documentation but also can facilitate errors.
Good documentation is the foundation of any solid malpractice defense and proper continuity of care argument, so risk managers constantly urge clinicians to make meticulous notes. But there are many ways in which documentation can fall short. Frequent education and adjustment to technological changes can be key to making good documentation.
The HHS Office of Inspector General gives the simplest reason for good documentation in its Roadmap for New Physicians,1 notes Kevin P. Mulry, JD, partner with Farrell Fritz in Uniondale, NY. The HHS advice is, “If you didn’t document it, it’s the same as if you didn’t do it.”
“Proper documentation is critical for a physician’s care of the patient and for guidance of any subsequent physicians who may rely on the medical record,” Mulry explains. “Also, without proper documentation, a physician may be unable to bill government or private payors and may be compromised in defending claims of medical malpractice.”
Open Notes Obligations
Malpractice defense often is the focus when encouraging good documentation, but it is not the only reason, says Richard F. Cahill, JD, vice president and associate general counsel with The Doctors Company, a malpractice insurer based in Napa, CA. Medical records serve a variety of vital roles, such as enhancing continuity of care to achieve optimum clinical outcomes, improving communication between and among providers within the practice as well as independent referral sources, and better enabling patients to understand their medical status.
Proper documentation can be useful to help prevent or address civil claims, licensing board complaints, and state or federal administrative department investigations seeking penalties, fines, and sanctions for alleged statutory compliance violations, Cahill notes. It also can be used to detail the nature and scope of services rendered to expedite CMS or third-party payor reimbursement.
Documentation also becomes an issue with patients accessing their records. In 2021, the federal rule on Interoperability, Information Blocking, and ONC Health IT Certification took effect, implementing the 21st Century Cures Act. That act requires healthcare providers give patients access to all the health information in their electronic health records (EHRs) at no charge and “without delay,” effectively requiring healthcare providers follow the Open Notes philosophy of providing patients full access to their records.2
Language barriers can affect compliance efforts. Cahill notes the HHS Revised Guidance Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient (LEP) Persons outlines the requirements for recipients of federal financial assistance from HHS to take reasonable steps to ensure LEP persons can access language services.3
“Clear and unambiguous communication is key to the physician-patient relationship. Misunderstandings often create frustration and distrust and can result in professional liability litigation or reports to state medical boards and third-party payors by disgruntled patients and family members,” Cahill says. “Furthermore, with the implementation of Open Notes, patients must have access to their electronic health records without delay, so notes must be readable to non-clinicians.”
Reinforce Best Practices
Risk managers can aid clinicians by implementing and reinforcing a comprehensive set of best practices for note-taking, Cahill suggests, because writing open notes does come with a learning curve.
Poor or improper documentation can haunt a physician and the hospital. One common scenario is when a plaintiff’s attorney conducts a metadata analysis after an adverse event and conclusively establishes a practitioner made an after-the-fact — and self-serving — change that was not properly identified in the chart as a late entry or an addendum. That creates the appearance of malfeasance.
Cahill says other common problems in documentation include:
- Inadequate clinical notations of what happened and why during a visit.
- Intentional embellishment to justify the bill submitted to CMS or a third-party payor. This can result in outright denial of the claim or, at a minimum, delay in reimbursement.
- Remarking gratuitously in the chart that another practitioner committed an error or pursued an ill-advised course of treatment. Those comments invariably create animosity and may invite reprisal.
- Inadvertent admissions of wrongdoing or liability in the medical record by a provider regarding his or her own care. This can result in a malpractice suit or a medical board complaint.
- Irrelevant disrespectful or derogatory observations about the patient written in the Open Notes portal. Such notes can cause the offended patient to make adverse comments about the practice on social media in retaliation.
“Each of these self-inflicted mistakes can and should be meticulously avoided,” Cahill stresses.
Documentation Policy Needed
Implementation and tracking of a medical record documentation policy are necessary for physicians and hospitals, says Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA. The policy should include the elements of what is expected in a clinical record, some of which is informed by specialty and covers billing regulatory issues.
In addition, Greene recommends respected peer-to-peer education on best practices for documentation, as well as common mistakes and pitfalls, which typically transcend specialty. That is recognized as an effective method for teaching clinicians best practices in documentation.
“Clinicians in a system who understand and implement good documentation policies can assist in training others and audit others’ charts to provide practical feedback in a meaningful and non-punitive manner,” Greene says. “Best practices for documentation can be enhanced by the choice of an EHR system, and efforts to protect the EHR against pitfalls.”
Those pitfalls include copied or cloned notes, unclear notes that do not adequately use punctuation or spacing to enhance clarity, and/or notes that do not include documentation of the provider, date and time of entries, and of any edits to entries. Regular EHR vendor training and education on the system can enhance best practices.
Clinicians should be trained to avoid common errors with EHR use, such as inappropriate overuse of the copy/paste feature, which may lead to documentation errors, such as outdated or inaccurate information. This can lead a current or subsequent treating physician, patient, or their counsel to being unclear or unable to determine what care was provided.
“In litigation or a credentialing or licensure investigation, or audit, this can add risk for clinicians as to credibility and reliability of the medical record,” Greene says. “Other common pitfalls include not documenting the rational or clinical basis for patient care and treatment decisions, particularly when they may be inconsistent with a specialist’s recommendation.”
More Pitfalls to Avoid
Other pitfalls include not documenting the risks, benefits, and alternative treatment options when obtaining a patient’s informed consent to treatment or their refusal of treatment, Greene says. Problems also can develop from not documenting follow-up instructions given to patients, particularly when there is a risk of serious harm to the patient; not documenting medications, allergies and reactions, missed appointments, patient noncompliance; and co-signing or countersigning a note that you have not read.
“From a risk management standpoint, clinicians should be advised to exercise great caution before criticizing another provider’s prior treatment recommendations or diagnoses, as they may not have the same information, the clinical picture may have changed, or the patient’s memory as to their care may differ over time,” Greene says. “Such criticism is not likely to contribute value to the patient’s current medical needs. Instead, advise objective documentation of the clinician’s clinical findings, assessment, reasoning, and recommendations at the time of their care treatment of the patient.”
EHR access audit logs create an evidentiary path for assessment of privacy breaches and care issues, Greene notes. The audit trail can show who accessed a record, what input or changes were made, and when. Retaining and securing audit logs and limiting access will help ensure the audit trail is accurate and reliable.
“When records are printed from the EHR, they often appear different than they do on the clinician’s computer screen. Key information the clinician utilizes or relies upon may not print out when records are requested for reasons including litigation of allegations of malpractice,” Greene says. “Risk managers, practice administrators, and clinicians are advised to be mindful of this risk and be aware of how to print records for production that reflect the complete information, as used in day-to-day practice.”
Appeal to Financial Risks
Adequacy of documentation is critical to ensuring proper compensation from third-party payors, says Bruce D. Lamb, JD, shareholder with Gunster in Tampa, FL. The potential for financial loss can make an impression on physicians when malpractice defense does not. Better documentation serves both purposes, so risk managers can appeal to whichever concern lands better with their physicians.
Governmental payors use an audit and extrapolation methodology in which they take a sample of records and consider that representative of many more. In that way, only a few records with inadequate documentation could effectively invalidate payment requests for a large batch of cases.
“The sample of records may pertain to one particular type of treatment or they may be a broad sampling of records. They may choose as few as 30 or 40 records and send them to an expert to ask if the treatment performed was justified by the medical records,” Lamb explains. “If they find there was insufficient documentation to establish medical necessity, that percentage from the sample is extrapolated across all the billing for a particular area of practice or just general billing, for years. It is often two years, but sometimes a bigger lookback is permitted.”
In that way, a sample of only 40 patients may reveal 60% of the records did not establish medical necessity. The payor will extrapolate that to declare 60% of all billing for the lookback period to be invalid, potentially costing the healthcare organization millions of dollars.
Courts have upheld the validity of the extrapolation methodology used by Medicaid and Medicare, Lamb notes. Now, more commercial third-party payors are adopting the tactic.
“It is problematic for big facilities but it is devastating for smaller practices. The cost of defense is extraordinary, too,” Lamb says. “A lot of doctors dismiss the calls for better documentation because they don’t think they’re going to commit malpractice and need it as a defense, but what they sometimes don’t realize is that the documentation is targeted in another area and it can be very devastating to them if they don’t have adequate documentation.”
Education on proper documentation involves an understanding of what is required by regulations as well as by government and private payors, says Kay Anderson, JD, an attorney with Baker Donelson in Memphis, TN.
“In addition to a substantive understanding, clinicians should be taught good habits so that medical documentation is timely, complete, and understandable,” Anderson says. “Deficient medical documentation comes from a host of problems, ranging from a lack of education on what needs to be included, a failure of clarity in describing the services performed, and simple inattention and laziness by not promptly carrying out this important function.”
Clinicians should be self-motivated to document well, says David W. Badie, JD, partner with Hall Booth Smith in Paramus, NJ. “I always tell providers that their documentation is the one opportunity they have to tell their story. It’s the one chance they have to share the details of their encounters with patients when the details are still fresh in their minds,” he says. “Providers see hundreds, if not thousands, of patients yearly and it is impossible to recall patient encounters unless something specific stands out.”
Badie encourages clinicians to tell the whole story, making sure the note is complete and accurate. They should recheck the documentation before signing off on it, ensuring they have not left out important details about their care or the patient’s condition.
“I can’t tell you how many times I’ve heard the question, ‘You would agree with me, would you not, that if it’s not documented, it’s not done?’” Badie says. “Do it right away. Often, providers are extremely busy and leave documentation to the end of a shift. Certainly, patient care takes precedence over paperwork, but concurrent documentation is the best way to protect yourself.”
Badie says it is essential to hold regular formal education for providers on this issue. “Defense counsel have a very specific and unique perspective on how documentation issues impact providers and facilities from a risk and liability standpoint, and we are often called upon to use actual case studies and examples to educate clinicians on common pitfalls and how to avoid similar mistakes,” he says. “One of the most common mistakes I see is a failure to document communications with other providers. If you speak with another provider about a patient and that patient’s care and treatment, document that conversation. This is particularly important for nurses and mid-level providers who communicate with physicians to update them on a patient’s condition.”
Another common pitfall is a failure to change values in the EHR dropdown menus. Providers frequently leave those values defaulted or leave the same value from a note corresponding to a previous assessment of a patient despite a change in the patient’s condition.
“This makes the provider look careless, which will later be used to paint the picture that the provider’s care was substandard,” Badie says. “The same holds true for providers who use the cut and paste function across numerous notes.”
- Office of Inspector General. A Roadmap for New Physicians.
- Department of Health and Human Services. 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program. May 2020.
- Department of Health and Human Services. HHS revised guidance regarding Title VI prohibition against national origin discrimination affecting limited English proficient (LEP) persons. Content last reviewed July 26, 2013.
- Kay Anderson, JD, Baker Donelson, Memphis, TN. Phone: (901) 577-2116. Email: [email protected].
- Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368.
- Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: [email protected].
- Bruce D. Lamb, JD, Shareholder, Gunster, Tampa, FL. Phone: (813) 222-6605. Email: [email protected].
- Kevin P. Mulry, JD, Partner, Farrell Fritz, Uniondale, NY. Email: [email protected].