Defensible Medical and Dental Records

Patient records play a pivotal role in the delivery of healthcare and serve a critical function in routine clinical operations. Essential details of the record should identify a patient’s medical and social history, comorbidities, drug allergies, presenting complaints, signs and symptoms derived from a careful physical examination, differential diagnoses, and treatment plan (including anticipated specialty referrals, new or revised therapeutic modalities, and recommended medications). Accurate documentation in the medical or dental record optimizes patient well-being and helps promote continuity of care and patient satisfaction.

Federal and state regulations address virtually every facet of health record content, security, storage, access, and disposal. Advancements in technology, including EHRs and artificial intelligence applications, have expanded the concept of the health record and its requirements. Practitioners are advised to keep current on the rules governing health records—a potential challenge because the rules change frequently and vary by state.

Retention

Healthcare practitioners must be aware of the different record retention requirements imposed by federal and local laws, agencies, licensing boards, and contracted health plans, in addition to any recommendations from professional associations. We encourage healthcare practitioners to consult with their legal counsel regarding how the law in their practice jurisdiction has been interpreted by the judicial system.

For more detailed recommendations, see our article “Medical and Dental Record Retention.”

Administrative Actions

Beyond patient care, health records serve other vital functions. Accurate progress notes facilitate prompt payment and can help avoid unnecessary disputes over the level of care rendered and the amount of reimbursement owed to the practitioner. For example, billing audits—especially by CMS—require clear documentation demonstrating medical necessity, the nature and scope of the services rendered, and sufficient justification for the billing code utilized.

Patient records also establish the quality of care rendered in the event of a professional licensing board complaint, peer review inquiry, or civil rights investigation. Patient grievances may be filed based on an individual’s faulty recollection of events, a failure to understand the course of treatment, or dissatisfaction that an adverse outcome occurred. When a patient record is well-documented, allegations can often be resolved—frequently before a formal administrative process is even initiated. If the action moves forward, practitioners who have appropriate documentation are better able to support their decisions and treatment plans with greater confidence of achieving a favorable outcome. As a collateral benefit, the risk of adverse social media postings may be avoided, helping to preserve the practitioner’s reputation.

Professional Liability Actions

A well-documented record increases support for the practitioner’s defense in the event of a malpractice action. Judges and juries generally regard the patient record as the most trustworthy and probative piece of evidence because it is an independent document created during the normal course of providing care at or near the time of the events in question. The patient record establishes facts during a period when no pending conflict or other motivation was present to shade or embellish the circumstances at issue.

The overall record as well as individual progress notes—key components of a professional liability action—are critical to helping refresh the practitioner’s recollections of events that might have occurred years earlier. When introduced as independent documentary evidence, a detailed and accurate record is a powerful defense to offset patient allegations that a practitioner was negligent in making decisions and delivering treatment. Perhaps even more importantly, a carefully prepared patient record increases the likelihood that a plaintiff’s attorney will decline from the outset to accept a case that may otherwise have an adverse event with significant potential damages, thereby allowing the practitioner to avoid the inconvenience, cost, stress, and mental anguish of having to defend a malpractice claim.

In cases involving allegations of professional negligence in which the record is silent or incomplete, plaintiff’s counsel will always remind practitioners of the adage, “If it is not recorded, it wasn’t done.” Relying on evidence of a practitioner’s personal habit and practice to support the care is less compelling than affirmative statements and observations specifically identified in the progress notes and patient summary. Careful documentation is especially important during conversations with patients about informed consent and informed refusal. For more on these topics, see our articles “Informed Consent: Substance and Signature” and “Informed Refusal.”

As a defendant under oath, a practitioner may be subjected to skillful cross-examination by opposing counsel and asked to recall, testify, and explain intricate details of a patient’s care. Usually, the requested information relates to incidents that occurred many years earlier and by the time testimony is sought in a legal proceeding, memories have faded and the often subtle recollection of facts may have dimmed by the passage of time. Suddenly, a few seemingly unimportant details can become the focal point of crucial allegations and, ultimately, the focus of jury deliberations and an eventual verdict or arbitration award.

The argument will be made that if the patient’s record had contained additional important items of history, observations, or findings, the unfortunate outcome may have been averted. A detailed patient record is invaluable for refreshing a practitioner’s recollection of interactions with the patient and the practitioner’s critical thought processes.

For further guidance on documentation, see our article “The Faintest Ink: Documentation to Defend Quality Patient Care.”

Alterations

Upon receiving notice that a malpractice suit is about to commence or has already been filed, practitioners must ensure the safety, security, and integrity of the patient’s record. Any changes made to the record after learning of a lawsuit raise questions about the practitioner’s credibility, the actual course of events that transpired, motives of the individuals involved in the care, and the quality of the treatment that was delivered. Many practitioners and defense counsel have been embarrassed during discovery proceedings—or even worse at trial or arbitration—to learn that an earlier copy of the record differs materially from the record provided after litigation commenced. Material changes to the record at a later date are virtually impossible to defend and usually result in a jury verdict or arbitration award favorable to the patient.

Forensic document experts are frequently called to testify that a paper record has been augmented or altered. In situations in which a practitioner has an EHR, counsel will retain information technology experts to conduct a metadata audit. The examination provides a complete analysis of every keystroke (including additions, deletions, and changes), when the entries were made, by whom, and how long a document was open for review and revision. If independent experts discover that the record has been altered, it may expose the practitioner to punitive damages, depending on the jurisdiction, and may also result in a licensing board investigation with subsequent administrative penalties, sanctions, fines, or practice limitations. Adverse findings often generate a cascade of negative effects on a practitioner’s ability to practice, acquire or retain admitting or surgical privileges, or participate in provider third-party payer networks.

Releasing Patient Records

An important safeguard in the office is implementing a procedure that requires the personal approval of the patient’s treating practitioner or the office manager before information from the patient’s record can be copied or released. Disclosing protected health information (PHI) requires a written request and, except for specific statutory exemptions, the request must be accompanied by a valid HIPAA-compliant authorization signed by the patient or a court order issued by a judicial officer. Federal and state privacy laws specify the types of record releases that are either mandatory or permitted and how requests should be addressed. Practitioners are urged to learn the privacy and security rules applicable in the jurisdiction where they maintain offices to ensure strict compliance.

This process for tracking patient records should also include documenting when and where the copied record was sent. In the event of litigation, it is helpful for your legal representative and possibly essential for your successful defense to be able to reconstruct when the record was previously copied and who received it. Healthcare practices and facilities are encouraged to develop protocols consistent with community standards and to conduct periodic internal audits to help promote consistency in record release and tracking procedures and ensure compliance with existing legal requirements.

Any communications with The Doctors Company or your attorney should be kept separate from the patient’s health record and properly identified in a conspicuous location on the document as confidential and protected from disclosure by existing statutory privileges. This will reduce the likelihood that they will be inadvertently copied or provided to opposing counsel without the requesting party first obtaining a court order specifically compelling their production.

For further assistance, see our comprehensive Medical and Dental Records Guide, or contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.