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Facts on making legal changes to medical records
Many medical practices primarily retain medical records to preserve and communicate information in order to improve patient care. But it's important to remember that medical records are legal documents and can become evidence in legal proceedings such as malpractice cases, reimbursement decisions, Medicare/Medicaid and workers' compensation determinations, peer review issues, and regulatory compliance investigations.
Well-documented, legible medical records can assist your defense in any of these actions. On the other hand, illegible, incomplete records can subject you to potential liability. Furthermore, destroying, losing, or altering an original record can be interpreted as an attempt to conceal misconduct, and can plant a seed of suspicion in the event of a legal proceeding or investigation.
The reality is everyone makes occasional mistakes when documenting patient records. And the methods you use to correct those mistakes can make or break you in a legal challenge. Here are some key risk prevention criteria for medical records management.
Document right the first time
All entries should be legible, comprehensive, and free of abbreviations. Each entry in the medical record should be dated and initialed or signed by the physician. It is a good idea to use a pre-printed examination form to assist you in making sure you appropriately document all elements of the office visit and your impressions.
Only patient notes, correspondence, test results, consent forms, and the like belong in the patient's chart. Correspondence to your malpractice carrier, peer review notes, general notes, and other items should not be stored in patient charts. Also, think twice about what you write -- it could later become Exhibit 1 in a case against you. For example, avoid including witticisms or personal comments ('This patient is a grouch!') in medical records. Things that may seem amusing to you at the time you write them may not be funny to a potential jury.
Also avoid changing an entry in order to tone down an overly critical observation of a patient's personality or behavior. "Cosmetic" changes are not necessary for patient care and should not be made at any time.
Don't destroy, rewrite, or replace
The fact that a record may contain something that is incorrect or that may have legal implications does not justify destroying, rewriting, or replacing the prior record. Doing so places the credibility of the entire record in jeopardy.
The only time it is appropriate to destroy and rewrite a medical record entry is when an error is recognized when it is being written and before the entry has been completed. For instance, if you are in the middle of a patient exam and you realize you wrote the wrong name on the progress note, you can properly dispose of the incorrect progress note and start over.
In some instances destroying a record can be considered a violation of the law and criminal in nature. Punitive damages have been awarded in cases where a physician improperly altered a medical record, regardless of whether doing so caused compensable damages to the patient.
Here's another scenario: Suppose a patient comes in and tells you that you misdiagnosed her. Now is not the time to start amending the records. Certainly, once you have reason to believe that you are or will be subject to any licensing action, peer review action, malpractice action, billing audit, or other action, do not then start performing housekeeping on your medical records. You should, however, make sure that all information related to the patient in question is contained in the chart and that no related information remains to be filed.
Courts and licensing bodies have universally held that intentional alteration, falsification, or destruction of a medical record to avoid liability is gross malpractice and subject to punitive damages.
Also, be aware that there are many techniques that can confirm the integrity of a record. These include using a handwriting expert to determine whether medical record notes were written at the same or at different times, and examining the paper the record is written on to determine when the paper was manufactured.
For patients' benefit?
It is always appropriate to make chart changes that are necessary to protect a patient's health status. For example, perhaps a patient is allergic to penicillin and the chart is erroneously marked to indicate that the patient is allergic to tetracycline. Failure to correct that error could endanger the patient. Change such an error as soon as it is discovered by making a single line through the incorrect entry that does not obliterate the prior entry. The physician should then sign, date, and explain why the change was made. Never, under any circumstances, use correction fluid or cut out parts of the record when making a change to the record.
Similarly, there may be occasions when your dictation was interpreted improperly, to the detriment of the patient's care. If you notice the change before the dictation becomes part of the patient chart (when the dictation is sent to you for proofreading) make the change then and have it incorporated into the final, approved patient note. However, if you discover the error after you have approved the note and it is part of the patient chart, use the same process to make the change: with a single line, mark the incorrect part of the dictated note, handwrite the appropriate entry, date, and sign the amended entry with a notation as to why the change was needed.
You may also dictate an amendment to the note. This amendment will be placed in the chart in chronological order but will reference the prior incorrect note, the amendment to the note, the reason for the amendment and the date of the amendment. Thus, if you discover on February 20 that the progress note from January 3 is incorrect, you can dictate an amendment, but it will be placed in the chart as of February 20, not as a replacement of the January 3 entry.
This should only be done if the new note is for patient-care purposes. Defensive entries, which have no bearing on the patient's future care, can bring your motives and the credibility of the record into question.
HIPAA provides patients with the right to request an amendment to their medical records. It does not, however, give them the right to make unfettered changes. You should have a form for patients to complete describing the correction they are requesting; you then have the right to accept or refuse the proposed change. Your decision should be well documented, and may include a comment to the patient's requested change to the record.
Any HIPAA amendments should then be placed in the patient chart in chronological order. Under no circumstances are patients permitted to make changes directly on the medical record. Thus, patients are not permitted to cross out your notes and write in their own.
Here are some additional tips to keep in mind:
If at all possible, never dispose of medical records. Instead, archive them off-site or have them stored electronically. If you do decide to dispose of medical records, make sure that doing so does not violate any other law such as HIPAA, and that all confidential information is destroyed. There are numerous cases of medical records that were carelessly disposed of (left on computer hard drives, for example). Patients' right to privacy has been destroyed in these cases.
Your medical records are an integral part of your practice. They serve as historical documents of the care you provide to patients. In this era of heightened legal scrutiny of physicians, it is important to understand what you can and can't do with regard to the creation, amendment, and storage of medical records. Following these suggested guidelines will serve to reduce your legal risk.
Joan M. Roediger, JD, LLM is a partner with the law firm Obermayer Rebmann Maxwell & Hippel LLP, where she is a member of the health law department. She can be reached at (215) 665-3216, at firstname.lastname@example.org, or
Patricia M. Salmon is a certified health business consultant (CBHC) and the president of Patricia M. Salmon & Associates, Ltd., which provides practice management services to physician practices. She can be reached at (610) 225-1990, or at email@example.com.
This article originally appeared in the February 2005 issue of Physicians Practice.