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Lawyers tend to be good at spotting unexplained inconsistencies in documentation. Take these steps to protect yourself.
The importance of good clinical documentation cannot be overstated. It communicates and guides patient care for the entire healthcare team. It also happens to be the central piece of evidence in every malpractice trial. Good documentation has stopped many malpractice cases from proceeding. Courts do not expect psychiatrists to predict the future, prevent all tragedies and render continuously flawless care. Rather, there is a general expectation that they will use “reasonable professional judgment” based on a thorough consideration of the clinical data.
This slideshow assumes an understanding of elementary documentation principles, such as the need for clarity, legibility, timeliness and accuracy. The presentation will address the clinical and legal reasons for maintaining acceptable documentation.2 Important documentation principles and style will be presented which may also serve to reduce liability risks.
• 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
Three phases of EHR malpractice risk8:
1. Implementation phase – errors due to new system, inadequate training, new error pathways
2. Transition phase – records divided between paper and EHR, user errors create incorrect/missing data entries, gaps in documentation and communication
3 Mature phase – system wide bugs/failures can occur, tech support may not be available 24/7
Cutting and pasting: merely copying forward entries may result in non-payment by insurance companies, allegations of fraud, allegations of failure to document
• 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
1. Thomas B. Bruce Lee: Fighting Spirit. Berkeley, CA: Blue Snake Books; 1974.
2. Mossman D. Tips to make documentation easier, faster, more satisfying. Current Psychiatry. 2008;7:80-86.
3. Stanley IH, Simpson S, Wortzel HS, Joiner, TE. Documenting suicide risk assessments and proportionate clinical actions to improve patient safety and mitigate legal risk. Behav Sci Law. 2019;37:304-312.
4. Shea SC. The Practical Art of Suicide Assessment: A Guide for Mental Health Professionals and Substance Abuse Counselors. Hoboken, NJ: John Wiley & Sons; 2002.
5. Hulslander K. Psychiatric Malpractice: Defense Attorney Perspective. 4th Annual Forensic Psychiatry Conference; SUNY Upstate Medical University; August 2, 2012.
6. Simon R. Improving Suicide Risk Assessment: Avoiding Common Pitfalls. Psychiatric Times. 2011;28(11).
7. Rodgers C. Special Topics in Psychiatric Malpractice. Am J Forensic Psych. 2009;30:5-16.
Carver N, Hipskind JE. Medical Error. 2019, StatPearls Publishing LLC. https://www.ncbi.nlm.nih.gov/books/NBK430763. Accessed November 11, 2019.
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