July, 2012
Guest Perspective, by Andrew Koslow, MD, JD, and Diana Nordlund, DO
[Editor’s Note: This article first appeared in ACEP News June 5, 2012, and is reprinted from the original with permission of Dr. Koslow]
“Doctor, let me see if I understand what you’re saying. You just told the court that Melanie was febrile, was much less active than usual, and wasn’t eating. You also testified that these can all be signs and symptoms of bacterial meningitis, a life-threatening illness. Yet you ordered no tests and prescribed no antibiotics. Instead, you told little Melanie’s parents that antibiotics wouldn’t help and that all she needed was Tylenol for the fever. But you were wrong, weren’t you, doctor?”
When emergency care is scrutinized for medico-legal purposes, the chart plays a key role in the decision making process. This is because charting is contemporaneous with the encounter, and, unlike memories, the chart does not fade or change with the years that typically intervene between treatment and litigation. The chart is pivotal in a plaintiff’s attorney’s approach to a case, vital to the defense attorney’s charge, and often the primary (if not only) source of a practitioner’s memory of the medical encounter. The million-dollar question, then, is what will that chart convey to the reader? Will the jury be able to clearly see the encounter in the way the physician did at the time the care was given? If not, will the jury base its decision on facts, emotion, likability of the parties and their attorneys, credibility of “expert” witnesses, or a combination thereof?
The story told by the chart is often a mere skeleton of the actual encounter, which not only represents a missed opportunity for communication between providers, but also can become a dangerous medico-legal pitfall. Multiple factors conspire against thorough documentation in the ED, including time pressures, pattern recognition, coding components, and the limitations and shortcuts found in the various charting systems. However, it behooves the emergency physician to develop a habit, to capture relevant quotes and specific behaviors that occur during the patient encounter in a way that will speak not only to the author several years and several thousand patients later, but also to the patient’s primary care physician scheduling a follow-up visit, a plaintiff’s attorney deciding whether or not to pursue a case, and a jury deliberating on the possibility of medical malpractice.
Which physician’s chart says “No Cause of Action” to you?
A: “Patient alert, exam of pupils/CN/ strength/sensation/reflexes/gait non-focal.”
Or
B: The same exam followed by: “Patient drinking juice; propped on elbows, coloring. On otoscopy, resists vigorously, calling me a ‘stupid-head.’ Relents when mom threatens to withhold dessert. Running down hallway after exam.”
The plaintiff’s attorney reviewing Physician A’s chart sees an opportunity. The generic, non-individualized “medicalese” introduces uncertainty that is unfavorable to the defense. The attorney knows that few jurors are literate in medical jargon; this creates a vacuum in a jury’s understanding of the case, giving the attorney an opportunity to convincingly present the plaintiff’s point of view.
On the other hand, the plaintiff’s attorney reviewing physician B’s chart foresees an uphill battle: this chart portrays a child who is strong and active, feisty and possessing the ability to reason and weigh options. It also illustrates the mother’s perception of the child’s wellness at the time. This feat is accomplished by documenting a few specific observations, accessible to laypersons, thus bringing the chart to life as a supportive witness to medical decision-making.
Some of the many instances where the story-telling approach is valuable are:
- The patient who is being held involuntarily: “Patient states ‘I’m going to shoot myself when I go home’” is more effective than “positive for suicidal ideation.”
- The difficult patient: Use exact quotes to convey the substance of the encounter, rather than characterizing a patient as “rude” or “abusive.”
- Documenting informed consent: “Patient says ‘I understand that I could die and I want to go home;’ wife, daughter RN Smith present.”
While it is neither practical nor advisable to treat the medical record solely as a medico-legal device, utilizing a few key phrases to document specific behaviors can make all the difference in prevailing in (or even better, avoiding) a malpractice suit. Those who rely primarily on the chart to understand what happened during a patient encounter long after the fact will be able to better understand the circumstances and decision making. Because a physician’s resources are best spent fighting disease rather than legal battles, this sort of pro-active charting is a critical part of effective care and risk management.
[Editor’s Note: One can readily see how “template” charts or a “check-box EMR” can lead to a lack of “color” in a medical record. I personally recommend always dictating a “color note” if using such a system, especially in less than routine situations posing potential risk.]