If You Don’t Document It, It Didn’t Happen

When I was in training there was—and probably still is—a dictum that if you don’t document it, it didn’t happen. Since then, documentation has become virtually all electronic which of course has many positives, but also many negatives. While the medical record is a critical tool for health care professionals to share information about patient care, it is also the best way to help defend and, in some cases, even avoid a malpractice claim. This year’s Candello Benchmarking Report, “For the Record: The Effect of Documentation on Defensibility and Patient Safety,” contains an extensive review of where documentation goes wrong, and the legal consequences are explored in detail. In addition, you will find useful tips for avoiding these errors.

It is not surprising to those of us who work in the medical professional liability world that poor documentation is associated with significantly higher odds of having to pay a claim. Interestingly the report found that illegible documentation had the highest odds ratio of closing a claim with payment, 3.8, though not surprisingly this represented less than 5 percent of documentation cases. In 30 percent of cases there was insufficient documentation of clinical findings resulting in a 2.8 odds ratio. Also not surprisingly, not documenting clinical rationale was associated with a 3.6 odds ratio, though again this was only found in a little more than 10 percent of claims. Also of interest, there was a statistically significant difference in the expense costs associated with claims that had documentation issues but had NO indemnity payment. This likely reflects the additional time defense attorneys had to spend to make up for lack of/faulty documentation.

Not surprisingly, issues with documentation in the care of the Surgery patient are focused on the informed consent process and the operative report (OP report). Legal colleagues have pointed out that the informed consent process has two distinct areas—the discussion of risks benefits and alternatives—and the documentation that this happened. As mentioned in the report, the holding area where a patient is just prior to their surgery is NOT the place to do either of these things. Ideally, especially for an elective and complex operation, the patient (and family if desired) should have multiple opportunities to discuss the procedure with the operating attending surgeon. Some surgeons are now recording these conversations so that a patient can view them at a later date (see Playback Health).

With regard to the actual informed consent form, most hospital and facility consent forms are generic and meant for all surgeries. A best practice would be to use a procedure-specific consent in addition, often made available by a specialty society. The American Society of Plastic Surgeons has these available to their members, and I’ve had defense attorneys speak very highly of their use when defending a claim. It’s also a great opportunity to give these to a patient at a first visit and then review them with the patient on a subsequent visit. While taking these steps may seem burdensome in the busy day of a practicing surgeon, they not only represent excellent patient care, but they also make it much less likely for a claim to result in payment—31 percent if there are no documentation issues v. 53 percent for claims with documentation issues.

Regarding operative reports, there remains no standard for what should or shouldn’t be in an OP report. The report recommends that they include “incidental findings, procedure complications, and comprehensive summaries of communications with patients, families or other providers.” I would also strongly urge that these be dictated as soon as possible after the surgery. It’s very difficult to defend a case when the OP report was dictated months after the surgery, by which time the patient may have already had multiple complications and any explanation of why in the OP report appears to be in self-defense.

When it comes to medical claims, both communication and documentation play a significant role. In fact, sometimes what seems like a communication issue is actually just one of documentation. For example, the provider did speak to the patient about following up on an abnormal test result, but didn’t document it in the medical record. Years later when there is a lawsuit, how does the defense team prove the conversation really happened?

Documenting in real-time is a particular problem in Labor & Delivery (L&D) and the Emergency Department (ED) where the fast-paced environment often precludes timely documentation. While this may not be an issue when all goes according to plan, when a patient’s condition rapidly deteriorates in the ED, or a patient’s labor suddenly progresses with potential harm to the fetus and/or mom, the staff must rightly spend their time caring for the patient not documenting in the medical record. Best practices can include having other team members document when possible (i.e., medical scribes in the ED) or using technology to help record what happened. In any event, documentation of the events should be done as soon as the patient stabilizes.

Documentation problems were found in 30 percent of Nursing claims, higher than any other area, reflecting its importance. Many of the documentation issues in these claims related to timeliness of recording a patient’s status in the medical record. Similar to L&D and the ED, this is a difficult problem to address in an already overworked nursing workforce. It remains a challenge for nurses to document in real-time as much as they can and health care institutions need to address this not just for the purposes of reducing malpractice risk, but also to reduce nursing burnout.

Finally, a number of documentation issues arise out of the seemingly endless number of technological advancements that on the surface seem like they could be net positive. Beginning with the electronic medical record (EMR) itself, the issue of copy and paste is one that defense attorneys find challenging to defend. It also makes the medical record nearly impossible to read for clinicians having to scroll through the same text repeating itself seemingly every day in a patient’s chart. Some hospitals have disabled this function in their EMRs, with both positive and negative consequences. 

Patients now by law have access to their charts and thus, the language used by clinicians needs to take this into consideration—always stick to facts and stay away from colloquialisms and vernacular terms when writing notes. My personal feeling is that charting may be replaced by audio/visual observation tools that automatically record the patient encounter. This is something that will not only save time for clinicians but also create a chart that is both more accurate and timely.

Take a look at this interesting and detailed report; there are lots of easy-to-use suggestions and ultimately time spent reading and implementing these suggestions will reduce time and money spent in litigation.