Good Record Keeping Is Good Medicine
An interview with Jon Porter, JD, an experienced attorney who focuses primarily on physician licensure defense and professional licensing for healthcare providers. Earlier in his career Porter served as both a prosecuting attorney and Director of Investigations and Compliance for the Texas Medical Board. Prior to law school, he worked as a Licensure Investigator for the Board.
You have worked in health law for more than 15 years, first prosecuting and now defending physicians and others who have run afoul of licensing boards. What’s the most common issue you’ve seen?
Poor record keeping. Don’t get me wrong. There are physicians out there who do real harm to patients, but there are a whole lot more who are perfectly good clinicians who get into serious trouble because they fundamentally misunderstand the purpose and value of medical records.
Medical records are primarily for the benefit of those who will care for the patient later on and for the protection of the doctor who takes the notes. What a lot of physicians fail to understand is that the records they keep are not solely for their own use. If they were, you could just scrawl something that no one but you would understand. But the notes you write are the only way the next provider knows what has been done, so they have to be legible, contemporaneous and complete.
I understand legible and complete, but why contemporaneous?
Because very few of us have perfect recall. By the end of the day or even of the morning, a physician may have seen a dozen or more patients. You’re just asking for trouble if you try to write notes for all of them after the fact. Most Boards argue contemporaneous means as soon as possible after you saw the patient.
But it’s less the “contemporaneous” part of the requirement that’s problematic. Where providers often fall short is in providing complete records. Today, licensing boards insist that a record “stand on its own.” That means that when the next physician looks at that record, he or she has to be able to understand from start to finish what you’ve done and why, which means giving a pretty good sense of the relevant history up to that point. Additionally, the Board demands to see the medical justification for all the clinical decisions a provider makes.
That sounds incredibly time-consuming.
It is. In the past, you could think of a patient’s whole medical record as a novel. If you read just one page or the notes from one visit, it would be like reading a single chapter: you might not understand all the characters in the book or every aspect of the plot. Well now the boards want each individual record to be a short story, with a beginning, middle and end—complete and intelligible all on its own.
So how does all that help protect the doctor?
As a faculty member of PBI Education, I see a lot of doctors who have gotten in trouble with their licensing boards. Very few come to my course voluntarily. But what I tell all my students is that a good medical record is their first line of defense with their Boards, malpractice suits, insurance companies and hospitals.
If you don’t write it down, it didn’t happen, so if a patient complains after the fact that you did such and such, all you can do is say, ‘No I didn’t.’ And the board is in business to protect the public, not you, so who do you think they are going to believe?
Most boards go so far as to say that good record keeping is good medicine; they consider it a “standard of care” issue. Therefore, even if there is no patient harm; but the medical records are bad, the Boards view that as a violation of the standard of care. In my experience this happens frequently.
It sounds like the standards for record keeping have grown considerably more stringent over time. Is that true?
Well, they have certainly changed. And not only does the government keep changing the rules, most of the doctors I see don’t know that the rules have changed, because they never knew the rules in the first place! In a class of 15, I typically find maybe one or two people who have actually read the rules. And often they only read them after they get in trouble.
Can you give an example of a recent rule change?
It varies from board to board, but one of the biggest trends I’ve seen in recent years is about documenting functionality in chronic illnesses. It used to be that if you saw in a patient’s chart that a blood pressure medicine had been prescribed and renewed several times, you would just assume it was working. Now you have to document that fact. You have to demonstrate that the patient’s blood pressure is within acceptable limits under the medication. That’s triply true in the case of any pain medication.
I imagine rules have changed considerably for opiates…?
Yes, and both state and federal authorities are going after potential abuses aggressively. Having a written controlled substance contract is fast becoming another standard of care. The contract can take different forms, but the goal is to clarify upfront for the chronic-pain patient—or for patients taking psychotropic drugs, for that matter—exactly what the doctor will and won’t do. It might spell out, for instance, that if the patient asks for an early renewal because they lost some pills, the doctor has the right to do a drug screen to make sure the patient is not abusing the drug. It might also detail the steps the doctor will take to ensure that the patient is not hoarding or selling the drug.
How much has the move to electronic record keeping lessened the burden on doctors?
EMR, electronic medical records, are both wonderful and awful. The new systems—once you master them—can make it much simpler to keep comprehensive records, but they can also cause some serious mischief. One of the common problems I’ve seen is that many of the forms auto-populate: you hit a button and a bunch of fields get filled in. Not long ago, I was going through a client’s records and I noticed that the system had plugged in a breast exam for every single patient, male or female, regardless of age. So to make the point crystal clear to this general practitioner, I called him up and asked why he was giving every one of his patients a breast exam every time they came in. He said, ‘I don’t do that!’ And I said, “Let’s just go through the records.” Needless to say, he’s a lot more careful now.
And boards are becoming much more astute about this. If they start seeing the same exact information in patients’ records over and over again, they are going to start asking what they can really believe.
It all sounds pretty intimidating. Any parting words of advice?
The best advice I can give is focus on documenting not just more, but more intelligently. Understand the rules and the purpose of record keeping and make sure you note what’s important for the patient, for the next provider and for your own protection. Your records must show your clinical decision making; justifying your diagnosis and treatments.
Jon Porter is a partner of the law firm of McDonald, Mackay, Porter & Weitz, L.L.P., Austin, Texas. Licensed since 1999, Mr. Porter frequently works with health care professionals who are experiencing chemical or mental impairment, standard of care issues, licensure matters and boundary issues. Mr. Porter speaks frequently on topics relating to medical regulation and medical-ethical issues.
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