August, 2017
Charles A. Pilcher MD FACEP
An emergency physician colleague recently asked “Is there a standard of care for documentation?” Another physician asked “Is there anything that I should always put in my documentation that will keep me from getting sued?” Here’s how I addressed the questions:
Is there a standard of care for documentation?
- There’s no standard of care for documentation.
- The record should support one’s medical decision making process, communicate to other caregivers the bases for your decisions and be your defense should you be wrong. We don’t have to be right every time, but we DO have to document the rationale for our decisions. We can be wrong and not be negligent, but the documentation should support clear thought processes. Bad judgment does not always equal negligence.
- For example, even though it may not be written or published, there is a standard of care for the evaluation of headaches. One’s documentation should support that the standard was met, i.e., that a reasonable physician in similar circumstances would have done the same thing.
- There will be two sides to every patient encounter that becomes a lawsuit: the plaintiff’s and the doctor’s. The outcome will depend on whose testimony is most believed. (I know of at least one case where the doctor was able to convince a jury that she evaluated every patient with a certain presenting complaint in same way with the exact same routine, even though it was not documented. A defense verdict was rendered.)
- Documentation using an EHR is very susceptible to outright lies. Example: Simply clicking a macro can generate an entire paragraph of diagnoses that were (allegedly) ruled out in a differential. In reality, one may have considered none of them, much less actually ruled them out. Anchoring bias takes hold. If a plaintiff expert suspects such “macro click-tation” and supports his/her position, the defense response is to ask the expert “Doctor, are you calling my client a liar?” Unfortunately, that works all too often, because juries generally sympathize with defendant physicians. They remember that question and don’t believe much more of the plaintiff expert’s testimony.
- However, this can backfire if the defendant is not a likable witness. If a doctor is not lying, then further testing is rightfully expected to rule out the problems listed on the macro-generated differential. An argument can be made that with EHR’s and the ease of clicking a macro to document one’s care, failing to do so strongly implies that what you claim you did, you did not do.
It’s not about the standard of care for documentation, but whether or not a jury will believe what one claims was done or not done regarding the problem at hand when the documentation suggests otherwise.
Is there anything I can put in my chart to keep me from getting sued?
No, but
- documenting the truth is a good place to start, and
- providing evidence that a differential diagnosis was formed and thoughtfully addressed is crucial.
One can always be sued, but the chart should be the physician’s best friend.