Zen and the Art of Documentation

• Communicate clinical information to current and future caregivers
• Reminder of what has occurred so far in treatment
• Justify care to 3rd party payers
• Inform professional standards review organizations
• Satisfy accrediting agencies
• Satisfy state law requirements
• Create basis for defense in a malpractice action

• Use professional language and an objective tone
• Express your professional concern for the patient to create credible evidence of your good faith intentions
• Avoid waging battles of professional disagreement in progress notes

• Document in such a manner that you are fully prepared to have the note be an exhibit in court
• In the event of a lawsuit, this is precisely what will occur
• In many cases, the notes are enlarged and printed out on poster boards to show a jury
• Documentation will make a better impression if it is clear, professional and free of gratuitous comments

• Sooner is better
• Credible documentation is done just after service is rendered
• Charting completed after an adverse event is vulnerable to accusations of fabrication
• Late documentation will be portrayed as self-serving by plaintiff’s counsel

• Some have suggested more is better
• Efficient use of time requires a balance in terms of quantity
• Strive for quality over quantity – smarter, not longer
PEARL: Documentation should be succinct and thoughtful, yet not excessive
• Should contain objective findings, patients’ statements, clinical judgments, and decision-making rationale
• It is a myth that liability is reduced by no or little documentation

• When noting an action taken in furtherance of a risk management plan (eg, committing or not committing an individual, increased frequency of appointments, etc.), include a statement explaining the rationale for the action
• Document reasoning behind diagnosis, treatment, and what risks and benefits have been weighed
• After an adverse outcome, people retrospectively regard the event as more probable than it really was
• Documenting the uncertainty involved and ways of addressing it may help counter “hindsight bias” that affects juries

• Some clinical situations require involvement of family members
• Document instructions and information given to both patient and family
• Note whether they agree with treatment decisions, as well as non-compliance with recommendations
• Unrecorded instructions/conversations with family members may become points of contention in the event of a malpractice suit

• Some clinical situations require involvement of family members
• Document instructions and information given to both patient and family
• Note whether they agree with treatment decisions, as well as non-compliance with recommendations
• Unrecorded instructions/conversations with family members may become points of contention in the event of a malpractice suit• Due to the stigma surrounding mental illness, juries may have erroneous beliefs about psychiatric patients
• Juries may be inclined to believe psychiatric patients are incompetent, or otherwise completely controlled by aberrant thoughts
• To counter this, when appropriate, documentation should reflect that the patient can understand and address relevant responsibilities
• Example: reporting adverse effects, seeking emergency attention, or participating in a safety plan

• Documenting verbatim statements from a patient, such as “I’ve never considered suicide,” can quickly convey key information you considered when making a decision
• In malpractice trials, patient quotes are powerful evidence, and must be taken at face value unless proven to be unreliable
• One important exception has to do with inconsistency of clinical data
• If a patient “has a large number or risk factors yet denies any thoughts about suicide, such an inconsistency between risk factors and reported ideation may signal that the client is hiding information.”4
• In such circumstances, if the patient is quoted as denying any suicidal ideas, it is important to document the reasoning behind why the patient’s words are credible

• Document your process of obtaining informed consent from the patient
• Particularly important with treatments/interventions that carry risk a reasonable patient would want to know
• Show that the following were discussed and understood:
• Nature and extent of psychiatric illness
• Risks and benefits of proposed treatment
• Risks of declining treatment
• Risks and benefits of other (reasonable) alternative treatments

• Demonstrate you are aware of relevant risk factors
• Ideally, include some form of analysis of risk factors, and general estimate of overall risk level (low, moderate, or high)
• Should be followed by treatment plan that directly addresses relevant modifiable risk factors, and rationale for choosing or rejecting options
• When at a clinical fork in the road where there are two plausible paths, choose the safest path

• This tip comes from an experienced psychiatric malpractice defense attorney.⁵ When asked what documentation problem makes it most difficult to successfully defend psychiatrists, he answered: “When they leave loose ends in their documentation.”
• What he meant was – if a high-risk issue is raised in documentation, never leave it unaddressed
• Be sure to document implementation of a reasonable intervention targeting the high-risk issue in the treatment plan section
• The higher the risk involved, the more diligent the documentation must be regarding how the plan will address the risk

• Document a coherent, consistent narrative and set of data
• Lawyers tend to be good at spotting unexplained inconsistencies in documentation
• Statements made, facts reported, and words quoted should be consistent throughout the document
• Preserve time to proof-read prior to publishing into the record
• When a patient presents an inconsistent narrative, it is even more important that the psychiatrist’s narrative provide the necessary consistency
• The way patients present their narratives may be a product of their personality style or relevant to their presenting symptoms
• Document an awareness of the inconsistencies within the patient’s narrative and make sense of them in a professional manner

• In difficult cases, seek consultation if possible
• It will be difficult for plaintiff’s attorney to prove that “no reasonably prudent clinician” would have made a decision at issue, when there are two clinicians arriving at the same conclusion
• Caveat: consultation will be effective only if consultant has been fully informed of the details of case. The blind leading the blind provides no protection

• Check boxes and various template forms now widely used
• They may carry unforeseen liability risks
• Check box forms are necessarily limited to predetermined items. May encourage you to not “think outside the box,” should important data not be present on form
• Check box forms dissuade from documenting a clinical narrative which provides a richer description of a patient’s actual presenting condition. Without a clinical narrative, lawyers and juries may fill in the blanks with their imagination
• Mechanical completion of forms or “checklists” may engender a false sense of security about risk, or preclude a more thoughtful analysis of patient’s clinical risk⁶
• Check boxes may sometimes be left blank for various reasons, risking an erroneous conclusion by others. For example, if a box is left blank, this may be portrayed by plaintiff’s counsel as neglected or incomplete care

• Problems directly related to telephone communications are not uncommon in psychiatric malpractice lawsuits⁷
• Maintain professional tone when documenting calls, emails, texts
• Document calls, especially substantive discussions, directly in chart
• Create a system for recording all clinically related calls, and train staff to properly triage calls and document them
• Determine whether a phone call and subsequent note raise a high-risk clinical issue

• In the event of a malpractice lawsuit, all clinical and patient related emails and texts are fully discoverable
• Email or text communications may establish a doctor-patient relationship in eyes of the law
• Limit generally, but when necessary, stick with topics such as appointments, rescheduling, and other non-clinical issues
• Avoid discussing sensitive clinical issues such as diagnosis, lab results or medications
• Avoid attempting therapeutic interventions or making interpretations
• Avoid discussing sensitive topics with a collaborative treatment provider over email – this is best done verbally, and then summarized into the patient’s record
• Emails, texts between collaborative treatment providers which become argumentative or unprofessional may be harmful in the event of a malpractice suit

• Documentation is the primary evidence in malpractice cases
• Document “court room exhibits” in a professional tone
• Explain your rationale
• When a high-risk issue is raised, don’t leave it unaddressed
• Emails and texts are discoverable in the event of a lawsuit