Looking Over Your Shoulder in Healthcare: Chart Audits

Part 2

Carolyn Buppert, NP, JD


December 08, 2011

In This Article

Litigants Are Looking at Medical Records

When a lawsuit for malpractice is filed, medical records become a major focus for both the plaintiff and the defendant. The documentation made by the clinician at the time care was rendered is considered the best confirmation of what happened. This is because the parties may differ in their recollection of the events surrounding the care in question and because much time may have passed between the provision of care and the lawsuit.

Typically, when a patient asks an attorney to file a malpractice claim against a clinician or hospital, the attorney will obtain copies of the pertinent medical records for review by a qualified consultant, who may become an "expert" at trial. The consultant is asked to determine, on the basis of the documentation, whether the treating clinician provided appropriate care or whether the clinician was negligent. The clinician's defense attorney also obtains and submits medical records to consultants and, where applicable, to a state-mandated prelitigation screening panel. The reviewers consider this question: On the basis of the documentation, did the clinician provide appropriate medical care?

Deficiencies in documentation hamper the defense in malpractice lawsuits. A plaintiff's attorney may seize upon deficiencies in documentation to demonstrate that the provider was negligent or incompetent. A professional liability insurance company wrote this in a handbook for physicians and office staff:

"Many malpractice claims result in a victory for the plaintiff because of the poor quality of medical records, even in cases in which appropriate medical care was provided. Maintaining adequate, defensible medical records need not be a chore. Ensuring that medical records are well-organized and reasonably complete may add a few minutes per chart to the physician's day. But, physicians whose inadequate records were partly responsible for their involvement in litigation can attest to the fact that the amount of time spent in deposition, meeting with legal counsel, worrying about the case and its effect on their personal life and professional reputation, or preparing for and attending trial, far exceed the time it takes to maintain adequate medical records."[6]

Meeting the standard of care. In order to demonstrate that the standard of care has been met, medical records must:

  • Document pertinent negatives on history and exam;

  • Document referrals and document that referrals were consummated;

  • Document refusals of treatment and reason for refusal (use the words the patients used when refusing);

  • Document that the clinician has reviewed the implications of a refusal of treatment;

  • Document encouragement of healthcare maintenance and risk reduction (eg, "Urged smoking cessation and offered assistance");

  • Document advice to the patient to notify patient contacts, when applicable (for example: "Advised that conjunctivitis may be spread to household members through shared linens, skin to skin contact.");

  • Document patient noncompliance with treatment regimen or referral, including the patient's reason for not complying and advice to the patient about the risk of failing to take the advice given.

Here is an example of how a deficiency of medical record documentation was used against a clinician in a malpractice case:

Case: A Pregnant Woman and Amniocentesis

A 37-year-old woman visited an obstetrician-gynecologist and NP many times for prenatal care but said she was not offered amniocentesis. The standard of care at the time was to offer amniocentesis to pregnant women over 35 years of age. (Now, the standard of care is to offer amniocentesis to all pregnant women.) The woman gave birth to a child with cri-du-chat syndrome. The woman sued on the basis that amniocentesis might have identified the disorder, and the parties recently settled for $7 million.

Here are the details: The woman had a history of dextrocardia and received in-vitro fertilization in early 2007 at a teaching hospital. Her first appointment with an obstetrician-gynecologist was at approximately 10 weeks. She was accompanied to the appointment by her husband and a hospital-provided interpreter. The woman spoke and read only Mandarin Chinese, and her husband's English was limited. The patient claimed that the physician failed to offer her the option of amniocentesis and/or chorionic villus sampling (CVS) and also failed to inform her of the chances of a child with chromosomal aberration being born to a 37-year-old woman. The physician offered maternal serum sequential screening.

The patient had obstetric appointments at 11 and 18 weeks, during which she saw a geneticist, genetic counselor, and NP. At the 11-week visit, the patient had an ultrasound and received genetic counseling. The plaintiff contended that the entire genetic counseling session occurred while the plaintiff was getting the ultrasound. The geneticist and genetic counselor also did not offer the patient the opportunity to have amniocentesis or CVS. During this visit, the patient's husband and the hospital-provided interpreter were present.

During the 14-week visit no mention was made of the option of amniocentesis. At the 18-week visit, the patient met with an NP, and her husband and interpreter were present. No documentation from that visit suggested that the patient was offered amniocentesis.

At the 23-week visit, the patient's husband was present but an interpreter was not, because the physician began the appointment before the time that the interpreter was scheduled to arrive. The physician did not get the plaintiff's signature waiving the presence of an interpreter and attempted to interpret through the patient's husband. According to the patient, the physician advised the patient that the risk for pregnancy loss from amniocentesis was 5% and advised her not to undergo amniocentesis. The physician says he did offer the option of amniocentesis, which the plaintiff declined. No documentation supported the physician's claim that amniocentesis was offered and declined. The patient claimed that she would have undergone an amniocentesis had it been offered and that she would have terminated the pregnancy had she been informed that the fetus had a severe chromosomal defect. The baby was born at term with cri-du-chat syndrome. The child is severely physically and mentally disabled and will require constant medical and attendant care for life.

The parents brought suit against the defendant hospital, the obstetrician-gynecologist, the NP, the geneticist, and the genetic counselor, alleging negligence in failing to offer the patient the option of having an amniocentesis, which would have disclosed the genetic abnormality and thus have given the patient the opportunity to abort the fetus; in failing to offer a timely CVS; in failing to advise the plaintiff of statistics on the likelihood of chromosomal aberration due to maternal age; and in failing to distinguish for the patient the difference between fetal screening and fetal diagnostic testing. The patient contended that the CVS testing or amniocentesis would have disclosed the partial deletion of the fetal 5p chromosome and that the patient would have opted to abort the fetus in light of the genetic aberration. The defendants claimed that proper care and treatment had been provided. The obstetrician-gynecologist testified that she did in fact offer the patient amniocentesis on August 6, a contention that was challenged by the plaintiffs. The other defendants denied any negligence on their parts.[7]

In this case, had the OB/GYN or NP offered amniocentesis and documented that she had done so, the case may have been settled differently.


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