Medico – Legal Documentation, T.C.A.
New Doctor Seminar, February 5, 2000
Proper and Necessary Medico – Legal Documentation
(For Use Inside and Out of the Courtroom)
By: Larry J. Laurent, Attorney at Law
The medical records generated and maintained in your clinic are the single most important items of information which you possess to support your ability to collect on your patient accounts.
Failure to properly record and document your patients’ current and past medical history (including all relevant facts surrounding your patients’ existing medical complaint(s)), the medical rationale (reasonableness and necessity) upon which your patient treatment program is based, your patients’ actual attendance at treatment sessions, and/or the rationale surrounding the medical reasonableness and necessity of all patient diagnostic testing administered, will effectively make or break your ability to collect your medical bills.
Far too often attorneys are presented with medical records which fail to reflect even the most basic information relating to your patient’s case. The insufficient nature and content of these records often create more problems than they are intended to solve. For example, in a car wreck case a doctor’s notes, including the history of the causation of the patient’s injuries, may simply reflect “car wreck” as the total patient history. While this doctor gets the point across as to the general nature of the “injury”, he/she totally fails to provide the patient’s lawyer a sufficient basis to “re-construct” and fully justify and explain the facts and circumstances giving rise to the patient’s injuries and course of treatment. While certain ancillary records are available to assist the lawyer, such as police accident reports, property damage claims forms, etc., the patient case history contained in your clinic file for this patient will become the center piece of any litigation and/or claims negotiations regarding the reasonableness and necessity for the treatment, diagnostic testing, etc. administered by your clinic. Very often personal injury cases are won or lost solely on the basis of the level and adequacy of the clinic’s documentation of its patient records — which documentation usually reflects a course of treatment that may or may not coincide with the nature of injuries initially described to have been suffered by the patient.
As a result of increased courtroom and insurance scrutiny of chiropractic bills and medical records, doctors of chiropractic and their staff are increasingly required to become players in the game and provide proper documentation of their health care practices capable of withstanding microscopic examination by all adverse parties. Medical records maintained by a treating doctor must be capable of fully documenting the specific nature of injury(s) sustained by his/her patient as well as the various forces involved. Patient records must contain and document specific findings from the physical examination — these findings must be logical and must coincide with the recorded history and documented causes of the accident. Medical records and narratives lacking this degree of specificity are usually worth little to the lawyer in that they fail to detail the proper nexus between the causation of physical injury suffered by your patient and the required treatment administered by the doctor. By providing the lawyer with proper documentation of the patient’s history and treatment the doctor should be able to assist in presenting a compelling argument in support of his/her course of treatment, including diagnostic tests and other ancillary charges included in the patient’s bill.
Of the fourteen chapters in the Mercy Conference guidelines one chapter was devoted entirely to the need for proper documentation of patient records. The Mercy guidelines state: “[t]he health record is helpful in the evaluation of practitioners, provides data for public purposes, and may be used for the purpose of teaching and research. It is critical in a variety of legal contexts, including litigation by patients and malpractice claims.”
Increased emphasis on proper documentation will also provide safeguards against malpractice claims. It is substantially easier for a former patient to successfully pursue a malpractice action against a doctor whose patient records poorly document the patient’s medical history, examinations, care and treatment. Lawyers try their car on a “trash in, thrash out” theory in these situations. On the other hand, the doctor who properly documents his/her patient case file will provide his/her own best defense against allegations of improper care and treatment. When a doctor and his/her attorney can point to a patient’s hand written case history which contradicts after-the-fact allegations of misconduct by the patient, a plaintiff malpractice lawyer will usually lose a lot of interest in further pursuit of his/her client’s case.
We must recognize that our society has become increasingly more litigious. We must also recognize that many significant changes have recently affected our tort system through the insurance industry’s tort reform legislation. Because of these factors there is now an increased emphasis on investigation and allegations of insurance fraud. The insurance industry is attempting to draw a correlation between over-treatment/over-billing and insurance fraud. It is, thus, imperative that doctors’ medical records reflect all necessary and proper information and data relating to the care and treatment of their patients. Because of the above circumstances more and more of the clinic’s records are serving as a “witness” of the provider’s thoughts and actions. The clinic’s patient’s paper file/chart should become the patient’s alter ego and document every aspect of the doctor’s relationship with his/her patient. The words referenced in the Mercy Conference guidelines, “IF IT IS NOT WRITTEN DOWN, IT DOES NOT EXIST” could not be more appropriate.
The doctor and staff who prepare themselves with facts generally fare far better in the legal system than those who “wing it” without proper documentation and support in their records. Without sufficient paper documentation to support his/her opinion a testifying doctor is often forced to offer speculative testimony in the jury’s eyes — this translates into a loss of credibility and, often, your patient’s bill. Failure to record significant facts in the patient’s file also cheats the doctor out of his/her best “witness” — the patient’s paper file. The patient’s written medical record is always the most reliable account of the history and medical necessity for the patient’s treatment. Those items and notations which are inserted into the patient’s written record are recorded as the occur over time and are never subject to change or faulty memory; nor are the written notations subject to a defense lawyer’s allegation that the testimony offered by the doctor is simply a device to support the doctor’s desire for monetary gain.
With this in mind it should be logical to look for effective ways to strengthen and increase the reliability of your most powerful weapon. Increased emphasis on implementing proper record keeping procedures should enable your clinic to produce the following results:
1. Increase the quality of your patient care by recognizing trends of clinical improvement. Patterns of increased or prolonged symptoms often suggest the need for second opinions or diagnostic testing. Failure to recognize these needs may be construed to reflect acts of malpractice.
2. Provide justification for patient care. Insurers are increasing their demand for proper documentation of patient treatment and are often refusing to pay for medical services which they consider lacking in proper documentation (need or application). This is particularly true in Peer Reviews where the review doctor routinely justifies his/her slashing of your bill by commenting on your lack of proper documentation for your treatment. It is no longer sufficient for your patient to simply have pain. Your patient records must detail and reflect objective physical examination findings that support your patient’s contentions and your specific course of treatment.
3. Increase referrals. Lawyers rely on doctors to properly treat the patient and support their client’s case at the time of settlement or trial. A doctor who routinely provides proper and sufficient patient history and documentation will be favored by attorneys who are forced to rely on these instruments in their representation of their clients’ cases. Good records will result in increased cross-referrals as they will make the lawyer’s life much easier. 4. Protect you during litigation. Good records will prevent most malpractice claims. Good record keeping will enable the doctor to testify with confidence at trial or in a deposition. These two occurrences should translate into increased revenues for the medical practice.
How Can You Change Your Record Keeping Procedures to Get These Results?
Patient History Form
The initial intake form filled out by the patient provides the very first (and often the best) frame of reference for the accident, occurrence of injury and required course of treatment. Typically, however, the doctor’s intake form only provides a few lines for the patient to discuss the occurrence of the accident and his/her health complaints.
Today, with increased insurance scrutiny, perhaps 90% of the doctor’s diagnosis and treatment (including diagnostic testing) derives from the patient’s personal disclosures about the cause of the accident and the nature of his/her injuries. It would be beneficial for the doctor or the doctor’s trained staff to schedule time with the patient to assist the patient in completing the patient history form.
There are actually three types of histories which are necessary in the medico-legal process. First is the history of the event which brought your patient to your clinic. This includes details of the automobile accident or other causation of injury. Remember, the legal track becomes very bumpy when all the lawyer has to rely on is the doctor’s recordation of “Car Wreck” as the cause of injury!
The second area of concern should be the patient’s own discussion of the history of the pain he/she is suffering. This recordation will always be significant as it will correlate with the patient’s physical examination, the patient’s response to treatment and the nature of diagnostic testing which is administered. Where one patient may have heard a “pop” resulting in shooting pain through the right leg, another patient may suffer the same degree of pain, but state that its onset was gradual and that he/she does not know what caused it. Differing case histories will require differing documentation of the patient’s case analysis and testing.
The third component involves the patient’s past medical
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history. Obviously prior injuries or impairments are extremely critical to the patient’s legal claims. Insurers will comb through your records looking for a any correlation of present injury to past injury in order to justify a denial of a claim. Your patient and staff must be very careful as that the patient properly characterizes prior injuries, treatments, or accidents.
Physical Examination Form
It is advised that the your clinic utilize your own individualized form and not rely upon the pre-printed type of exam forms sold at seminars. You should never utilize an exam form which simply requires the clinic staff or doctor to “mark out” the inapplicable exam features. One of the primary allegations of malpractice is that the doctor failed to properly diagnose or was incomplete in his/her assessment of the patient’s initial physical condition. Large blank areas on an exam form imply inadequate examination – which, in turn, implies negligence and provides an opportunity for a good lawyer to contention that the doctor failed to maintain the proper standard of care. For example, a lawyer may ask the question: “doctor, you obviously felt that a cranial nerve examination was pretty important or you would not have included the provision for such an exam in your examination form, would you? Why didn’t you perform a cranial nerve examination on my client?” Lack of specificity in the exam form can often paint the doctor in a bad light in front of a jury. Inasmuch as conditions which are treated by chiropractors are often “soft-tissue” related injuries, the organization and completion of the doctor’s patient history
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form must detail the description of the soft-tissue complaint. The physical examination should then attempt to verify as much as possible and provide additional information toward a logical diagnosis. For medical-legal purposes a patient’s pain would logically come from the following sources:
a. muscular injury;
b. osseous fracture;
c. neurological injury;
d. vascular injury or obstruction;
e. ligamentous injury; or
f. psychological overlay or malingering motives of secondary gain.
Each of the above should be objectively addressed in the patient examination form — either affirmatively or negatively. However, you should ensure that these finds correlate to the patient’s disclosures recorded on the patient history form.
The doctor or staff’s examination findings should be recorded with care so as to avoid ruining the clinical reasoning process with scribbled or illegible notations or codes. Never simply draw a line through a list of alternative test procedures. Always state why or why not each test was performed. All exam form notes should be typed and/or recorded in a legible manner with ink. Express your findings with the entire word, if at all possible. If abbreviations must be used, be sure to include the abbreviations and their meanings on the printed exam form.
Radiography is probably the most commonly used diagnostic tool. However, very few charts seem to contain radiology reports.
Consider out-sourcing your x-ray interpretations. While the doctor may deem himself/herself qualified to read x-rays, this process may bolster the impact of this diagnostic procedure by suggesting the use of a specially trained provider. Ensure that all relevant examinations in the radiology report are covered — whether normal or not. This will preclude allegations of oversight. The radiology report should not simply be assimilated into the medical narrative. A separate report will always seem more significant, if only to a jury.
Your clinic’s daily records should provide the clear and compelling reasoning to support your continuation of care.
Travel cards are still in use, though many doctors have replaced them with actual sheets of paper in the chart. Be careful to avoid short-hand accounts of patient status updates on these forms. Simply noting “adj” or “doing better” is easy to do but may mis-convey the patient’s actual progress or treatment. “Doing better” will not reveal what was actually done on each patient visit; nor will it give a true reflection of the patient’s actual progress. Such an ambiguous term is easily twisted in trial or settlement negotiations.
Daily records are very important tools in establishing a clear picture of the patient’s progress and response to treatment. A patient’s failure to adequately respond to treatment may (and generally would) support the need for further diagnostic tests, reassessments, second opinions or referrals to a specialist. Comprehensive and specific daily notes can affirmatively provide the appropriate and necessary picture in support of each of these diagnostic steps. Good notes will also assist your patient’s lawyer in linking each step of the patient’s course of treatment to the appropriate diagnostic test and, ultimately MMI.
Because insurers and defense attorneys are becoming increasingly interested in the medical necessity of treatment and office visits, daily notes are becoming the most important part of the doctor’s arsenal in providing the comprehensive overview necessary to support the care and treatment rendered. An insurance investigator or defense attorney may ask:
a. what did the patient complain of on that
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b. what objective test signs were present on that day indicating the need for treatment?
c. what exact treatment was given on that day?
d. where was the treatment applied and how long did it last?
e. who administered all treatments including the therapies?
f. how did the patient respond to the treatment described?
Inasmuch as these questions may be asked of the doctor under oath, for each and every patient visit, if the doctor’s answers are not recorded or verified in the daily records, the adverse attorney will force him/her to admit that his/her recitation of the treatment is coming from memory and may not be correct, but aided by interest in recovering his/her fees. Sufficiently precise notes will disarm the adversarial counsel and provide support for your side.
“Subjective Symptoms” This type of documentation greatly helps support determinations of future work restrictions and documents the patient’s pain and suffering. These records also help the doctor recite his patient’s status during the course of treatment.
“Objective Findings” This section is designed to objectively confirm the patient’s subjective symptoms and justify care. These record should include the types of chiropractic care administered and the type of testing utilized. The objective findings reflect the facts supporting your care. The on-going presence of pain is not being accepted anymore as sufficient proof that care should be rendered. Each patient’s objective signs should be noted and correlate to the requirement for continued treatment.
“Action Taken” These notes detail what you did to the patient. What type of therapy was administered, how long did it last, who did it, did the patient have adverse reactions or complain about the treatment, etc. Answers to these types of questions will reinforce the need for continuation of care. The answers may become the doctor’s best witness in the event of a malpractice suit. These answers are the best source of information available on what happened on a particular visit. The written record is not subject to emotion and cannot fail over time due to loss of memory.
“Plan”. This section supports the doctor’s prognosis about future treatment and should reflect a sufficiently comprehensive statement about the need for continuation of care or the frequency of required future treatments. Re-examinations and diagnostic testing can and should also be supported here. It may be necessary for the doctor to dictate his findings on the fly; however, it
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is encouraged that the doctor establish some form of comprehensive format through which he/she can effectively record his/her insights on patient treatment and care at the actual time of treatment.
The above discussion is intended to provide the doctor and his/her staff with a few insights from a lawyer’s perspective. Lawyers do not like to have their hands tied by insufficient medical documentation. Personal injury cases are becoming harder and harder to prove and settle, without the disadvantages of poor medical record keeping. Good records also bolster the doctor’s image among his peers and those other professionals with whom he transacts business (attorneys, testing centers, referring doctors, etc.). The extra effort required to ensure properly documented patient files can and will be justified — count on it!