Your (Non) Words Can Be Used Against You
At PT 2010, some clinicians posed a question for their colleagues: Is it possible to cause harm to a patient, even when you get everything right?
The answer, unfortunately, is yes, said Sheila K. Nicholson, PT, JD, MBA. She and Michael Loughran, president of HPSO Affinity Insurance, presented "Documentation is Your Best Defense" on Thursday, June 17.
It wasn't as if Nicholson and Loughran were trying to scare their colleages--but if that was the resulting effect, they seemed okay with that. They presented several scenarios where clinicians' documentation--or lack thereof--landed them in big time legal trouble.
"If you ended up the subject of a lawsuit, how would your lawyer know you DID follow the standards of practice?" Nicholson asked. "For every case I've defended, every expert we line up says the same thing: If it is not documented, then it didn't happen."
Nicholson outlined the importance of proper documentation to be complete and timely and listed the Top 10 Commandments of Documenting:
1. No erasing or adding words;
2. Only record the FACTS;
3. NO critical comments or opinions;
4. Time, date and sign EACH entry;
5. Leave no blank spaces;
6. Record information legibly and in ink;
7. Avoid overly general phrases;
8. Clarify the prescription, and document that you did this;
9. Write the chart for your own eyes;
10. Allow no relatives or visitors to see patient's documents or chart.
While clinicians are encouraged to have malpractice insurance, it won't always save you should a patient or family level a charge of negligence. "You can be sued even if you have insurance," Nicholson stressed. She pointed out that supervisors can be included on liability claims for lack of documentation by their subordinates. "Doing the right thing following an incident during therapy, for example, is just as important as the rest of the documentation of treatment. The owner of a practice as well is responsible for what every employee does."
She reminded the therapists that they could even be sued for conduct such as abuse and neglect, simple assault ("we do touch our patients!" she emphasized) and battery, which can result from improper training of staffers, improper assignments and improper supervision, among other claims.
She asked attendees to consider some honest questions about their own documentation practices. "Do we document for patients what their treatment will be and communicate it to them? Do we always get their informed consent prior to therapy? You need to make sure your patients know what you are doing each and every time you see them AND that they understand. It's hard many times to make sure you're doing this. Home health settings are actually the best settings for this type of communication."
Managing staff and patient care is at the top of most claims, Loughran said. "In an ideal world, your documentation would reflect all involved information and the ongoing process of treatment for each patient's health record," he said. "When that happens, we are in the best position to help you defend your license."
He offered several real-life scenarios of cases he's defended where clinicians doctored documents following a lawsuit being filed, or let an outsider see a patient's case file (violating HIPAA), or assigned therapy to a PT who didn't have the proper certification to perform a certain treatment. All cases resulted in major harm to the patient involved--and could have been avoided with proper documentation from the outset.
"If you leave here with nothing else, leave with this: Do not let ANYONE dictate to you what you should or should not document," Nicholson emphasized. "In the end it is YOUR license at stake. You should be able to document whatever you feel is important to properly communicate your patient's care, regardless of how the form reads or if there is enough room."