Legal and Risk Implications of Clinical Documentation

1. Legal and Risk Implications of Clinical Documentation Paula J. Holbrook, RN, BHS, JD, CPHRM Associate Director, Risk Management Associate General Counsel September 25, 2017

2. Legal and Risk Implications of Clinical Documentation I have nothing to disclose

3. Legal and Risk Implications of Clinical Documentation Learning Objectives: Upon completion of this activity, participants will: • Discuss the multiple and varied uses of patient’s medical records • Identify several state and federal laws that regulate clinical documentation • Identify the risks of inaccurate or incomplete clinical documentation.

4. One Record, Many Purposes Your patient’s medical records serve several purposes: • As a vehicle for communication among health care providers about the patient’s care and treatment • As a basis for accreditation and licensure • As a basis for billing and reimbursement • As a basis for planning and implementing quality improvement initiatives • Contains data for research • As a basis for risk mitigation • It is the most credible evidence in legal proceedings, including medical malpractice cases, criminal matters, disability determinations, workers’ compensation matters, abuse cases, and licensure

5. Medical records and Kentucky law • Medical records are considered business records • Medical records are given special treatment under the law • Medical records are deemed authentic if certified • Because medical records have so many uses, the Kentucky legislature carved out a subpoena process to expedite production for use in legal proceedings. See, e.g., KRS 422.305

6. KRS 422.300 422.300 Use of photostatic copies of medical records “Medical charts or records of any hospital licensed under either KRS 216B.105 or a similar law of another state or the United States that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony, by use of legible and durable copies, certified in the manner provided herein by the employee of the hospital charged with the responsibility of being custodian of the originals thereof. Said copies may be used in any trial, hearing, deposition or any other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original charts or records which, however, the hospital shall hold available during the pendency of the action or proceeding for inspection and comparison by the court, tribunal or hearing officer and by the parties and their attorneys of record.”

7. Kentucky Rules of Evidence and Medical Records Information contained in medical records is excepted from the hearsay rules: • Present sense impression • Then existing mental, emotional or physical condition, such as mental state and pain • Statements for purposes of medical treatment or diagnosis… describing medical history, or past or present symptoms, pain or symptoms….reasonably pertinent to treatment or diagnosis • Records of regularly conducted activity (see next slide)

8. Kentucky Rules of Evidence and Medical Records Records of regularly conducted activity: KRE 803(6) “A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

9. Kentucky Rules of Evidence and Medical Records “If it wasn’t documented, it wasn’t done” Absence of entry in records: KRE 803(7) “Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or other data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.”

10. Legal Requirements of Medical Records • Every health care facility that receives federal funding is required by law to maintain records that are accurate, complete, signed, and dated. • JCAHO also requires that medical/dental records be maintained that are accurate, complete, signed and dated. • Content: guided by laws (ex. HIPAA), state and federal regulations, professional guidelines, hospital and medical staff policies and procedures

11. Medical records Requirements • Set forth in administrative regulations for hospitals (902 KAR 20:016), primary care centers (902 KAR 20:058) and psychiatric facilities (902 KAR 20:180) • Delineates general content and by type of clinical documentation and/or services provided • History and physical • Requires reports for services, such as lab and radiology • ED logs • Operative reports • Pre-and post anesthetic examination

12. Medical records Requirements • For psychiatric hospitals, emphasis on individualized comprehensive treatment plan, justification for special treatment procedures, such as chemical, personal, or mechanical restraints or seclusion • For ambulatory care, emphasis on integration of information, continuity and coordination of care

13. Medical records requirements CMS establishes standards of care and evaluates compliance with Conditions of Participation (CoPs) According the State Operations Manual, CMS or its designee will review: • “Patient’s clinical records, to validate information gained during the interviews, as well as for evidence of advanced directives, discharge planning instructions, and patient teaching…. patient who has undergone surgery would include a review of the pre-surgical assessment, informed consent, operative report, and pre-, inter-, and postoperative anesthesia notes. • Closed medical records may be used to determine past practice, and the scope or frequency of a deficient practice. Closed records should also be reviewed to provide information about services that are not being provided by the hospital at the time of the survey. In the review of closed clinical records, review all selected medical records for an integrated plan of care, timelines of implementation of the plan of care, and the patient responses to the interventions. “

14. Clinical Documentation Guidelines Documentation should be: • Accurate: sufficient information to record patient’s condition. • Timely: Document at the time events are occurring, or as soon as practicable thereafter, to allow contemporaneous communication with other health providers • Factual: watch opinions: medical judgment based on deductive reasoning is appropriate. Criticisms of other providers is not. • Objective • Compliant: with CoP’s, TJC standards, UKHC policies and other guidance

15. Clinical Documentation Guidelines Documentation should be: • Clear and concise • Legible notes with legible signature: if your notes cannot be read or attributed to you: what purpose do they serve? • Your own: do not depend on nursing staff to document relevant findings and resist the temptation to rely on or copy other physicians’ observations. • In compliance with hospital policies and procedures posted on CAREWEB

16. Clinical Documentation Guidelines Documentation should be: • Entered into the chart every time you see or examine a patient • Entered into the chart every time you discuss care with a patient or family • Dated, timed and signed: each entry! • Reviewed for accuracy with corrections promptly made

17. Clinical Documentation guidelines Documentation should not include: • Derogatory conclusions regarding patient behavior • Criticisms of other UK providers or referring physicians/hospitals • Your conversations with Risk Management or the fact that an incident report was completed following an event

18. Clinical Documentation Guidelines Documentation should include: • Recordation of patient noncompliance • Recordation of patient or family statement of history or condition, but noted in quotations to indicate a reported history: “patient reports”: do not document as fact • Your communications with other providers all requests for consults • Follow-up calls to or from a patient

19. Documentation of acute events • ACUTE EVENTS such as resuscitation are very time- and intervention-specific • Accurate and complete documentation of these events is essential • Chaos often interferes with coordination of adequate documentation • Create a detailed timeline of events and interventions: coordinate with other providers to assure accuracy. Aim for minute by minute documentation • Rely on available timepieces: rhythm strips and other monitoring devices • Do not delegate your documentation to others!

20. Clinical Documentation: when you dictate • Dictated records must be completed in a timely fashion • Operative reports and procedure reports should be dictated immediately following the procedure. • History and physicals should be dictated/completed within 24 hrs of admission • Discharge summaries should be dictated on date of discharge or within the regulatory timeframe • Consequence of late dictations: critical details are LOST FOREVER • If litigation ensues and these reports were not done within these standards, they are considered sloppy, unprofessional, suspect and CYA: not good. • Electronic Medical Record audit trails newest trend in litigation: Plaintiff’s attorneys asking for audit information revealing who accessed a medical record, when the record was accessed, and what changes were made.

21. Clinical Documentation Guidelines • The institution owns the records; the patient owns the information • Document every time you see a patient, especially during clinical changes or decline • All information goes in the chart as soon as it is completed: charting filed out of sequence is suspect! • Do not take any part of the record home with you or walk around with it on your clipboard or put it in your coat pocket or locker. • Make sure any corrections or supplementations are done in accordance with policy: if question, call Risk Management

22. Importance of Medical Records in Litigation Jurors and attorneys usually view the medical record as the best evidence of what really happened to a patient WHY? Lawsuits are not tried to a jury until years after the events at issue occurred, and long after memories have faded Statutes of limitation: the time period within which a lawsuit must be brought after an event occurs: • One year after the event in the case of an obvious injury • Can be extended further when the injury was not immediately discovered • Two years after death when the injury is death • In event of a minor, not until they reach age 19 Medical records which were created at the time the event occurred, and which are required to be kept by the hospital as a business record, have added credibility in the eyes of the law and in the eyes of a jury

23. Could this be your documentation? Real entries in medical records….(no kidding!) 1. The patient refused an autopsy. 2. The patient has no previous history of suicides. 3. Patient has left white blood cells at another hospital. 4. She has no rigours or shaking chills, but her husband states she was very hot in bed last night. 5. Patient has chest pain if she lies on her left side for over a year. 6. On the second day, the knee was better, and on the third day it disappeared.

24. Real entries in medical records….(no kidding!) 7. The patient is tearful and crying constantly. She also appears to be depressed.  8. Discharge status: Alive but without permission.  9. She is numb from her toes down.  10. The skin was moist and dry. 11. Occasional, constant infrequent headaches. 12. Patient was alert and unresponsive.  13. She stated that she had been constipated for most of her life, until she got a divorce.

25. Real entries in medical records….(no kidding!) • 14. Both breasts are equal and reactive to light and accommodation. • 15. Examination of genitalia reveals that he is circusized.[sic] • 16. The lab test indicated abnormal lover function. • 17. Skin: somewhat pale but present. • 18. The pelvis exam will be done later on the floor. • 19.  Patient has two teenage children, but no other abnormalities

26. Questions??