Why They Matter in Medical Malpractice Actions
By Alexandra Dare Essig
One of the most frequent questions healthcare providers are asked under oath in medical malpractice suits is if they have heard of the phrase “if it is not documented, it did not happen.” Providers are often tempted to respond by retorting that if they spent all their time documenting, there would be no time for patient care, which is true.
So, what is the happy medium between these two extremes? The answer is documentation that not only addresses the standard “SOAP” format of subjective, objective, assessment, and plan, but also summarizes the important and relevant conversations exchanged between the provider and patient.
If a case becomes a medical malpractice lawsuit, all too often, we see patients claim that the provider said one thing while the provider says they told the patient the opposite. If the summary of the important conversation is not documented, who is the jury to believe? This puts one party account against the other, which may make it difficult for a jury to believe either party.
There are other potential pitfalls that a provider should be aware of when it comes to documentation and malpractice claims. The first pitfall is the use of a template. Templates are commonplace and expedite the documentation process, which is good. Still, failure to ensure that default options are appropriately modified and the correct option is selected from a dropdown box can come back to haunt the provider.
The second pitfall is the copy-and-paste function. Again, being able to copy and paste or “carry over” text from another visit/provider speeds up the documentation process. However, we frequently encounter situations where a provider fails to modify or tweak the carried-over text to account for the patient’s most current status.
The final pitfall is the issue of late documentation. Late documentation understandably happens, and it is not automatically a red flag. When it comes to malpractice claims, the attorneys often want to know why the late documentation occurred. Documenting the reason for the delay can be appropriate in some situations. For instance, the provider’s daily progress note is typically entered into the chart immediately after rounds conclude at 9 a.m. However, the provider’s daily progress note for that day is not entered until 11:30 a.m. Why was the note late? What was the provider doing between 9 and 11:30 a.m.? Was the provider taking a break? No, it turns out that the provider was actually involved in a code blue in another patient’s room. Such an instance is a good example of when to include the reason for late documentation (but without violating HIPAA/disclosing the details of the code blue patient).
Finally, in the present world of electronic medical records, all providers know (or should know) about the existence of audit trails. Audit trails reflect the date and time that the provider accessed a chart and the date and time the provider drafted and signed off on (or “filed”) that note. However, most audit trails are far more detailed. For instance, when a patient’s chart is created in Epic, that Epic audit trail will show not only the aforementioned standard entries but also the unit and even the workstation/computer terminal used by the provider to create the progress note, what modifications the provider made to a progress note as it was being written, whether the provider sent a copy of the progress note to another provider, and whether the provider printed a copy of the progress note.
In other words, every click, every entry, and every access/view by the provider is accounted for in the audit trail.
Accordingly, stay cognizant of your digital presence in a patient’s electronic chart.
Alexandra Dare Essig is an attorney with Goodman Allen Donnelly and focuses her practice on the defense of hospitals, physicians, dentists, nurses, nursing homes, and other healthcare providers. goodmanallen.com
