Documentation That Matters—The Attorney's Perspective

While there are several reasons for documentation, this article focuses on establishing that a given encounter was within the range of acceptable practices, or the “standard of care.” A large volume of documentation generally does not serve this purpose well. In many cases specific documentation is critical to defense. When your care is being questioned, we often look in retrospect for these very important “signals” which might be lost in the “noise.”

What to Document—The Reasonableness Standard
The general standard for documentation in the modern era is to include information that a peer would agree should be included. There is no hard science as to what documentation should contain, so the “reasonableness” standard is what providers are held to in all specialties. A common question that arises is, “What must I look at, and how do I document that?” This is especially true when EHRs, portals, and health information exchanges provide copious amounts of potentially relevant data. It is important that you specifically describe the context of your encounter and what was reviewed. Some examples of sample language include:

PHONE CONVERSATIONS

• This documentation is based on a phone conversation with the patient, in which no review of the pertinent records was done.
• This documentation is based on a phone conversation with [physician/advanced practice provider], in which no review of the pertinent records was done.

SPECIFIC DETAILS ABOUT WHAT WAS REVIEWED

• I reviewed the previous operative report for the ORIF L ankle, and the pre-op, post-op and follow up images.
• I reviewed the last 3 months of office notes, the lab reports since 1-1-2022, and the request for consultation from [physician/advanced practice provider].
• I reviewed the previous admission discharge summary only.
• I reviewed the most recent emergency department physician record only.

When you didn’t review or know previous imaging, lab, or historical information that is subsequently shown to have details about contributing factors in an adverse outcome, your defense will be the reasonableness of the depth of your review based on the level of visit or consultation that you were provided. This reasonableness will be established by your peers. Defense for a reasonable review relies on the given level of clinical encounter aligning with the detail of your review. If you don’t state what you reviewed, plaintiff attorneys may try to assert that you reviewed everything available to you, and your actions fell below the standard by not acting on that information. Even more problematic is to state “old records were reviewed,” which would then imply that you reviewed everything and were responsible for it.

When to Document—The Credibility Issue
Defense attorneys have noted that documentation notes that are clear, timely, outline a thought process at a crucial moment, and generally reflect a “tight ship” are favorable for defensibility. Alternatively, defense attorneys have noted that documentation that is inaccurate or template-based, or includes speculation or jousting about the care of others can unfavorably affect defensibility. Late entries are especially problematic because they are likely to be factually inaccurate and may not reflect what you knew at the time of your clinical encounter.

The defense of patient care is prospective, based on what you know, and when you knew it. Plaintiff attorneys will try to apply a retrospective standard—what you should have known, or ultimately, did know. This becomes especially problematic when you later learn of an adverse outcome and then are challenged with whether to add an addendum to your note, or a new note.

In the event of an adverse outcome, defense attorneys have opined that there are several priorities:

1. Foremost, care for the patient. If the new information is critical to the patient’s care, document what you did: communication with the patient, communication with a subsequent treater, revision of your plan, etc.
2. Document in a contemporaneous fashion your thought process as best as you are able. This often reveals that a provider is engaged, caring, and following through. EHRs capture and time/date stamp all entries, so describing why you are entering new information, what it is based on, why it’s important, and what you did about it are the critical elements.
3. Ensure that if you are using a template, it is both appropriate to the clinical scenario and accurate. Critical to your defense is the reasonableness of your thought process, your decision making, and the timely implementation of your plan. Templates generally do not capture this well.
4. If listing a differential diagnosis, make it clear in the note that you understand there are many potential alternatives, that the care process is fluid, and the care plan may be adjusted as more information becomes available over time. Simply listing serious diagnoses in the differential, with no discussion as to why you think them unlikely or need further follow-up information, can be extremely challenging to the defense when that serious diagnosis leads to an adverse outcome. For some diagnoses, predictive tools such as HEART scores, Wells criteria, etc. can greatly assist your defense.
5. Document key conversations around important treatment decisions. Who you talked with, what information was shared, who was going to implement what plan, and a general consistency among the team is also crucial to your defense.