Ann M. Lucado Wake Forest University Baptist Medical Center, Winston Salem, North Carolina, USA

Transcription

1 The Emerald Research Register for this journal is available at wwwemeraldinsightcom/researchregister The current issue and full text archive of this journal is available at wwwemeraldinsightcom/ htm Risk management strategies in physical therapy: documentation to avoid malpractice Morey Kolber Physical Therapy Institute, Inc, Adjunct Faculty South University, West Palm Beach, Florida, USA, and Ann M Lucado Wake Forest University Baptist Medical Center, Winston Salem, North Carolina, USA Documentation to avoid malpractice 123 Abstract Purpose This article aims to highlight the importance of a complete and accurate medical record as it pertains to potential risk exposure in the outpatient physical therapy profession Design/methodology/approach Basic charting rules, correction and alteration recommendations, documentation of telephone conversations, informed consent, exculpatory release forms and incident reports are discussed Basic risk management strategies are reviewed that may reduce outpatient physical therapy practitioners malpractice exposure Findings The authors contend that quality and thorough documentation is as important as the quality of the care that is delivered to patients, since medical records are legal documents and serve as valuable evidence as to what transpired between patients and the healthcare providers Originality/value Practical documentation strategies are described in a manner that will inform physical therapists of their legal obligations relating to patient care Keywords Document management, Liability, Risk management, Records management Paper type General review American healthcare has been experiencing an ever-growing rate of malpractice claims since the mid-1970s (Scott, 1990) Malpractice actions fall under the laws of tort with the intention of producing sufficient liability to deter reckless acts, while not imposing so much liability that social relations are frozen (Robertson-Jones, 1992) Narrowly defined, healthcare malpractice is characterized as professional negligence However, when looking at malpractice more broadly, it encompasses any potential liability-generating conduct associated with an adverse patient outcome (Scott, 1990) Although the rates of malpractice are highest among physicians, allied health care providers face the risk of malpractice with every patient encounter (King, 1986) As physical therapists develop more autonomous practice patterns, with trends toward direct access and treatment without physician referral, malpractice becomes a greater risk (Ashcroft, 2004; Robertson-Jones, 1992) The legitimate bases for the imposition of physical therapy malpractice include professional negligence, intentional wrongful conduct, breach of a contractual therapeutic promise, and absolute liability from dangerous equipment or potentially dangerous clinical activities (Scott, 2000) In a negligence lawsuit the plaintiff must prove, by a preponderance of evidence, that there was a legal duty, that the duty owed was violated, that this breach of the duty was the direct cause of the patient s alleged injuries, and that the injuries are legally cognizable International Journal of Health Care Quality Assurance Vol 18 No 2, 2005 pp q Emerald Group Publishing Limited DOI /

2 IJHCQA 18,2 124 by a jury or judge (Robertson-Jones, 1992; Scott, 1991a) Aside from legitimate bases, physical therapists may be exposed to malpractice risks for other reasons including patient dissatisfaction with outcome, improper handling of complaints and billing issues Physical therapists must acquire the necessary knowledge of their legal responsibilities related to patient care (Scott, 1990) An understanding of risk management strategies will reduce healthcare providers malpractice exposure (Fellechner and Findly, 1991) This article discusses the importance of a complete and accurate medical record as it pertains to potential risk exposure in the outpatient physical therapy profession The medical record basics Physical therapists in today s healthcare system are increasingly being asked to accomplish more with less time With mounting time pressures many physical therapists feel they do not have the time to thoroughly document patient care (Abeln, 1997) It is important to understand that the quality and thoroughness of documentation is as important as the quality of the care that is delivered to patients Effective documentation strategies have the dual benefit of improving patient care and decreasing the risk of malpractice litigation (Baker, 2000) The medical record has a major role in the facilities risk management program (Feather and Morgan, 1991) Medical records are legal documents that serve as the most valuable piece of evidence as to what transpired between the patient and the healthcare provider The contents of the medical record can be used for or against a practitioner in a medical malpractice case Records providing a clear picture of the care provided may dissuade an attorney from becoming a plaintiff s legal representative (Baker, 2000) Patients are becoming more discerning in their expectations of healthcare than in previous years Many can be demanding and perhaps at times have unreasonable expectations regarding healthcare outcomes (Feather and Morgan, 1991) Information documented is apt to scrutiny in malpractice litigation in order to determine if the treatment provided has met the accepted standard of medical care A record that is complete and accurate may only benefit the practitioner should a lawsuit arise The medical record can be your best witness and defense or can be your worst enemy in a malpractice case It will be examined for completeness, accuracy, omissions, alterations and specifics related to the treatment The medical record is viewed as the witness that never dies and never lies (Sherbanee, 1997) Organizations adopt procedures and policies that dictate the standard of care for that facility: the medical record will be examined to determine if those standards were followed for that particular patient s care being investigated (Feather and Morgan, 1991) Legal proceedings typically take place years after an episode of patient care transpires, and therefore physical therapists must rely on the information in the medical record to determine what treatment was provided A complete medical record will reduce the exposure to a tort claim by memorializing the episode of care being investigated Accurate and complete documentation is a characteristic of prudent clinical practice The facts of the patient s care must be complete and written in an objective, consistent manner similar in length and quality regardless of medical coverage or reimbursement The information documented in the record must be truthful, respecting the principle of veracity What is written should be pertinent to the patient s care, using

3 the guiding point of relevance Avoid documentation of legal matters in the medical record Avoid explaining errors, poor outcomes, or unwarranted admissions of liability Be specific and do not generalize Quantifiable objective information is preferred Subjective information is open to interpretation, and therefore use of direct quotations from patients is preferable Information should be legible, clear, and written in permanent ink In addition to the legal requirements for clear legible documentation, the ethical principle of beneficence is also pertinent the records may either hasten, or aid the patient s recovery, in that other healthcare providers will make decisions based on the information provided (Teytelman, 2002) Legible documentation will preserve the continuity of care provided to the patient and identify important aspects of the patient s medical history including adverse reactions and contraindications (Feather and Morgan, 1991) Timeliness of documentation is important (Murphy, 2001; Teytelman, 2002) Practitioners should document what is fresh in their memory The plaintiff s attorney may ask when you typically document patient care Appropriate documentation of such policies and procedures regarding time requirements for documentation should exist in your clinic If medical records are transcribed, consider dictating in the patient s presence, allowing them an opportunity to correct the record if necessary and appropriate (Schneck, 2001) Plaintiff s attorneys will argue that a practitioner s memory fades with time Oddly, a patient s memory is clearer with passing time (Weintraub, 1999)! When patients choose to not comply with recommendations, planned treatment outcomes may not be met Non-compliance has been defined as an individual s informed decision not to follow therapeutic recommendations (Muscari, 1998) In cases where patients file suit owing to poor outcome documentation of visit compliance may serve in your defense Some attorneys are dissuaded from filing suit when they see the chart contains information indicating the client contributed to a less than perfect outcome (Baker, 2000) The medical record should document missed appointments and the reason for the missed appointment In addition to the documentation of non-compliance or non-attendance, the practitioner should also document attempts to improve compliance and attempts to educate the patient regarding non-compliance Telephone conversations with patients and healthcare professionals involved in the patient s treatment should be recorded in the medical record Important information to include consists of the date and time of the call and call return, the nature of the call, advice provided and any action taken It is important to follow up on any advice provided and document patient response or lack of patient response Important points that must be considered in every medical record include: patient s name on every page; pages dated and organized in chronological order; a problem list and medications; allergies and precautions prominently displayed in a standardized location identified in the facilities policies or in-service manual; discharge instructions, including an assessment of the patient or caregiver s comprehension of these instructions; use only facility approved abbreviations avoiding professional jargon to avoid misinterpretation clinically or legally); Documentation to avoid malpractice 125

4 IJHCQA 18,2 blank spaces should be filled in with no lines skipped; informed consent should be documented and may be charted in more than one area within the record; and all entries authenticated with the provider s name and credentials 126 Informed consent Informed consent is rooted in the principle of self-determination and is the cornerstone of the American jurisprudence system (Weintraub, 1999) Every patient has the right to decide whether a particular treatment will be used or omitted Aside from the legal requirements, informed consent generates trust and respect from patients and provides the patient with valuable parameters for understanding their diagnoses and treatment (Weintraub, 1999) Every physical therapist has the ethical and legal obligation to obtain informed consent from the patient or surrogate decision maker (Scott, 1999) The guide for professional conduct of the American Physical Therapy Association (APTA) states that a physical therapist shall use sound judgment in informing the patient/client of all substantial risks of the recommended examination and intervention (American Physical Therapy Association, 2004) Although the elements of adequate disclosure may vary by the region s statutory or common law, most regions require certain elements to be covered minimally (Banja and Wolf, 1987) The main elements of informed consent are the diagnosis, recommended treatment, risks and proposed treatment complications, prognosis and risks of foregoing treatment altogether (Baker, 2000; Banja and Wolf, 1987; Scott 1991b) Written informed consent should be obtained and recorded prospectively The consent process should always be performed by the practitioner conducting the evaluation The task of obtaining a signature on an informed consent may be delegated to appropriately designated personnel as the practicality of the practitioner obtaining this may be limited by time constraints From a legal perspective, failure to obtain written consent might constitute a negligent breach of the standard of care and result in a tort claim (Scott, 1991b) Lawsuits regarding a failure to obtain informed consent usually accuse the healthcare provider of negligent non-disclosure, which means that an aspect of the treatment that should have been communicated was not and that it ultimately resulted in the patient sustaining an injury (Banja and Wolf, 1987) Litigation from a failure to obtain informed consent and a resultant injury may be influenced by a patient s misunderstanding of expected outcomes Litigation concerning informed consent should not occur, because obtaining a patient s informed consent is a prerequisite to treatment and because the legal requirements for obtaining informed consent are relatively easy to meet (Scott, 1991b) In cases where a substitute therapist is treating an established patient, supplementary informed consent is not necessary, provided the plan of care is not changed (Scott, 1991b) In any case where the treatment is modified, a patient should be informed, and consent obtained and documented In the cases where a minor or incompetent adult presents for treatment, the competent adult, parent or legal guardian should provide consent The more common methods of obtaining informed consent include documentation by the therapist in the treatment record, standard operating procedures with checklists and boilerplate consent forms (Scott, 1991b) Documenting consent in the treatment

5 record is performed at the time of the initial patient visit by the therapist Standard operating procedures use documentation or checklists developed by the facility, which the physical therapist would typically sign and date to verify that informed consent was obtained (Scott, 1991b) A limitation to these two methods is that the patient does not sign, and therefore they do not constitute strong legal evidence that informed consent was obtained Another limitation of standardized checklists is that they can not be fully inclusive of all the possible risks, alternatives and complications, therefore legally posing a liability as a result of possible omissions (Kardos, 1991) Boilerplate consent forms may be presented in a short or long version These forms will provide documented evidence of informed consent and become part of the medical record The patient signs the boilerplate form, which is an acknowledgement to consent (Scott, 1991b) The short boilerplate forms should list the five required elements of informed consent and the long form usually is custom tailored to the individual patient with specifics about each element of disclosure (Scott, 1991b) As mentioned earlier, the limitation of the long form is the inadvertent omission of an item (Kardos, 1991; Scott, 1991b) Regardless of which method is chosen for documentation of informed consent, keep in mind that when clients refuse to give consent, informed refusal of care and the consequences of such a decision should be explained to the patient and documented (Baker, 2000; Scott, 1999) Documentation to avoid malpractice 127 Exculpatory release Exculpatory release forms are waivers of liability Releases from liability are often considered for the purpose of avoiding potential lawsuits Medical professionals alike must understand that these forms do not absolve a practitioner from liability when used prospectively (Scott, 1997) The exculpatory release is considered a violation of public policy and has often been detrimental to cases of liability involving physical therapists (Scott, 1997) In the cases Leidy v Deseret and Meinman v Rehabilitation Center Inc the trial-level courts favored the defending physical therapists However, on appeals both cases were reversed, in part owing to the exculpatory releases (see Scott, 1997) In limited circumstances, it would be considered prudent risk management to have a patient sign a liability release Specifically, in situations were a patient refuses beneficial treatment that may as a result be detrimental to his or her condition, the therapist may consider a partial release form Offering to provide payment to a patient for expenses relating to an injury or complaint is not sufficient alone to prove liability: however, it may be construed that wrongdoing did take place (Schunk, 2003) In situations where a therapist agrees to settle for a disclosed amount of monies the therapist may as a condition to this payment have the patient sign a retrospective exculpatory release Corrections and alterations The correction of medical records is necessary and acceptable under certain conditions (Weintraub, 1999) Correction of errors and late entries must be performed according to the accepted guidelines of the facility and medical community Occasionally a clinician may complete a patient note and realize that perhaps he or she forgot to add a measurement or documented a position inaccurately In such cases simple guidelines should be followed to ensure legibility of the record and to avoid suggestions of doctoring the record

6 IJHCQA 18,2 128 Corrections of the medical record should be done using the SLIDE rule (Baker, 2000) The acronym slide stands for: Single Line through error, Initials of individual making the correction, Date the correction was made, and an Explanation of why the correction was made (Baker, 2000) Some experts recommend avoiding using the words error or mistake alternative words might include inaccurate entry (Bean, 1993; Murphy, 2001) When making corrections the original entry must remain visible (Bean, 1993) In cases where a late entry or addendum is necessary the entry should not be squeezed between the lines and should be placed in chronological order (Murphy, 2001) The original date should be referenced Avoid making corrections or addenda after a complication has occurred or after originals have been released Always keep in mind that late entries are less credible and may draw attention to areas of weakness (Bean, 1993) A deliberate attempt to change rather than correct the medical record is considered an alteration (Baker, 2000) Few occurrences will be more devastating to a career or legal case than the revelation that a medical record has been altered Spoilation is a term used to describe record tampering and may not only expose a practitioner to losing his or her malpractice case but to punitive damages and even loss of licensure or registration (Weintraub, 1999) Spoiled documents include destruction of records, removal of parts of the record, recreating records, forging records and inaccurate corrections Given the sophistication of today s litigation techniques, altered records will rarely go unnoticed For every altered record there exists a copy of the original that will find its way into litigation (Bean, 1993) With the advances in chemical and spectroscopic examination of medical records attorneys are able to hire individuals to use ink analysis to determine the exact date of entry (Murphy, 2001) Also, electrostatic detection apparatus (ESDA) can be used to evaluate the impressions on the pages of the medical record and determine if new pages were inserted or old ones removed (Sherbanee, 1997) A standardized system should be in place to indicate that copies of the record have been prepared and to whom they were sent This type of notation system may prevent the entry of suspicious, even if well intentioned, retrospective entries (Baker, 2000) Incident reports Incident reports record information about an adverse event, and serve the purposes of both quality, and risk management The report decreases the facilities and providers exposure to a tort claim by memorializing facts about the event This is important as the defendant is often notified about a pending action years after the incident has occurred and documentation recorded at the time of the incident is considered to be the most reliable record of care rendered to the patient (Feather and Morgan, 1991) Once completed the reports should not be placed in the treatment record Reports should be written any time something out of the ordinary occurs This includes observations of defective equipment, threats of violence or harm, expression of dissatisfaction of care, and injuries to the patient, staff and visitors As a general rule no incident is too small to report When writing a report, document witnesses or patients using narrative quotes, avoid speculating as to the cause, avoid attributing blame, identify treatment provided if any, and avoid writing guilty conscience notes Never document in the medical record that an incident report is on file The laws concerning incident reports will vary with respect to jurisdiction Generally, an

7 incident report is not discoverable As a risk management tool the report is still privileged and may only be ordered released if information about the incident cannot be obtained otherwise Discussion Although the number of reported physical therapy malpractice cases is small (30 cases were located in the legal literature between 1960 and 2000), compared to suits against physicians it is still imperative that physical therapists practise prudent risk management (Scott, 2000) Concise, accurate, and timely documentation is critical in preventing exposure to potential litigation (Feather and Morgan, 1991) Solutions to practising prudent risk management include staff training and in-service requirements, internal prospective and retrospective chart audits Facilities should have documentation of policies and standards of operation Licensure requirements should be inclusive of training in documentation and avoidance of medical errors Entry-level curriculum should be inclusive of medical legal issues A good patient-practitioner relationship, competent communication with the patient, clear accurate documentation and written informed consent will reduce the chances of negligence claims Documentation must be learned and practised much in the same way as clinical skills Physical therapists need to adopt good habits of documentation and become aware of their legal obligations incidental to patient care In any situation where there is a potential for liability exposure, immediate contact with employers or supervisors is advised so that his or her supervisor can contact an insurer and legal counsel Only an attorney can fully protect a therapist s interests once a claim is filed and served (Selle, 1999) Documentation to avoid malpractice 129 References Abeln, S (1997), Reporting risk check-up, PT Magazine, Vol 5, pp American Physical Therapy Association (2004), Guide for Professional Conduct, American Physical Therapy Association, Alexandria, VA Ashcroft, CE (2004), Risk Management Resources Guide, American Physical Therapy Association, Alexandria, VA Baker, SK (2000), Minimizing litigation risk Documentation strategies in the occupational health setting, American Assoication of Occupational Health Nurses Journal, Vol 48 No 2, pp Banja, JD and Wolf, SL (1987), Malpractice litigation for uninformed consent: implications for physical therapists, Physical Therapy, Vol 67, pp Bean, RV (1993), Altering records: discrediting your best witness, Journal of the Medical Association of Georgia, Vol 82 No 2, pp 63-4 Feather, H and Morgan, N (1991), Risk management: role of the medical record department, Topics in Health Records Management, Vol 12 No 2, pp 40-8 Fellechner, BL and Findly, TW (1991), Malpractice in physical medicine and rehabilitation: a review and analysis of existing data, American Journal of Physical Medicine and Rehabilitation, Vol 70 No 3, pp Kardos, GG (1991), Failure to document, Quality Assurance and Utilization Review, Vol 6, pp

8 IJHCQA 18,2 130 King, JH (1986), The Law of Medical Malpractice in a Nutshell, 2nd ed, West Publishing, St Paul, MN Murphy, BJ (2001), Principles of good medical record documentation, Journal of Medical Management, Vol 16, pp Muscari, ME (1998), Rebels without a cause, American Journal of Nursing, Vol 98 No 12, pp 26-7 Robertson-Jones, S (1992), Medical malpractice & professional liability insurance: the need for physical therapists to be informed, Orthopedic Practice, Vol 4, pp Schneck, LH (2001), Bad charts: the malpractice plaintiff attorney s best friend, MGMA Connexion, Vol 1 No 2, pp 43-5 Schunk, CR (2003), Responding to patient complaints, PT Magazine, Vol 11 No 11, pp 22-7 Scott, RW (1990), Instruction on health care malpractice issues in entry-level physical therapy curricula,, Journal of Allied Health, Vol 19, pp Scott, RW (1991a), Informed consent, Clinical Management, Vol 11, pp Scott, RW (1991b), The legal standard of care, Clinical Management, Vol 11 No 2, pp Scott, RW (1997), Exculpatory release from liability, PT Magazine, Vol 5, pp 28-9 Scott, RW (1999), Law and Liability Part 1: Liability Issues, American Physical Therapy Association, Alexandria, VA Scott, RW (2000), Malpractice update 2, PT Magazine, Vol 8 No 2, pp Selle, EW (1999), Part 1 liability, Laws and Liability Manual, American Physical Therapy Association, Alexandria, VA, p 179 Sherbanee, AS (1997), On the record the risky business of altering a medical record, Cost and Quality Quarterly Journa;, Vol 3 No 3, pp 33-6 Teytelman, Y (2002), Effective nursing documentation and communication, Seminars in Oncology Nursing, Vol 18 No 2, pp Weintraub, MI (1999), Documentation and informed consent, Neurology Clinics, Vol 17 No 2, pp