Friday, February 13, 2009


Record keeping is one of the most common problems we see in audits, Board investigations, patient complaints, Medicare and Medi-Cal fraud cases, insurance fraud cases, etc. There are two kinds of record keeping that are important. First, there is record keeping with respect to your business practice. These are technical violations such as failing to notify the board of your change in address or operating without a fictitious name permit.

Second, and what this article addresses, is failing to maintain adequate and accurate medical records. The California Medical Board's most common violation for a citation-and-fine is for inadequate record keeping. We will address this issue in the context of physicians but the same principles apply to all other health care providers: dentists, chiropractors, naturopathic doctors, acupuncturists, physical therapists, nurses, optometrists, etc.

If you are ever the subject of a patient complaint, medical malpractice allegation, fraud charge or other complaint – an excellent medical record will serve you well. Record keeping should be part of your compliance and risk management plan.

In these days of managed care or where there are practices with a high percentage of Medi-Cal and Medicare patients, it can be difficult to stay on top of record keeping. If you know record keeping is not your strong suit, address it early and come up with a plan for your office.

California law sanctions inadequate record keeping. Specifically, Business and Professions Code section 2266 reads: "The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct."
During the past three years, the Medical Board has issued over 90 citations to physicians for failing to maintain adequate and accurate medical records. The Medical Board does not consider a citation-and-fine “discipline” and it is not reported to the National Practitioner's Data Bank (NPDB). However, the Medical Board does disclose citations and fines on the Medical Board's Web site which no one wants on a public site.

What we see, however, in Accusations filed against licensed professionals is that the Board will allege numerous violations and often the only ones that will stick are record keeping violations. The record keeping ends up being critical. If we had to reverse engineer many of our cases, it was the poor record keeping that led to the case. This poor record keeping can be inadequate history and physical, lost records, failure to record consent or critical conversations with patients, notifying patients of lab or testing results, etc. Thus, if an Accusation is filed against a physician or other health care provider, the record keeping violations will be charged in addition to other quality-of-care violations. Accusations are reported to the NPDB as well as reported in the Board website.

The other BIG problem we see is when changes are made to the medical record when the record is requested by the Board and the notations in the chart are not dated on the date that they were made. If you make changes or additions to a medical record, run these changes by your attorney since changes that are not documented properly can appear to be an act of dishonesty or fraud. There are ways to document the changes but get a second opinion before you do something that can cause more problems than it will fix. This is addressed further below.

Medical records are important and practices should review how they are maintained on an annual basis. Why are medical records so important?

1. They often are the best defense of a physician or other provider in a medical malpractice action;

2. They serve as a basis for planning and maintaining quality of patient care and allow you to show the quality of care;

3. Medical records also serve as a basis for reimbursement and are critical in audits and fraud claims since if the service is not recorded -- it is assumed it was not performed -- and if medical necessity is not recorded it will be assumed it was not necessary or was overbilling or upcoding;

4. Incomplete records interfere with the ability of a physician or provider's peers to perform peer review;

5. Good records can prevent Medical Board, Dental Board or any other Board from going forward in an investigation. If the initial reviewer in the Board’s central complaint unit can tell from the records that the patient complaint does not have merit, the case can be closed right away. If there is not enough information in the file along to determine the standard of care has been breached, the case must be referred to the field, assigned to an investigator, and the resolution of the complaint takes much longer.

What are the principles of record keeping? The California Medical Association prepared Document #1135 which references a number of professional organizations as having jointly developed the following principles for medical record content which can apply to all health care professionals:

■ The medical record should be complete and legible (If the records cannot be read, it is a violation of Business and Professions Code section 2266.) If your records are not legible, transcribe them right away when you submit your records. Have your attorney review the file before it is sent to the Board.

■ The documentation of each patient encounter should include: the date; the reason for the encounter; appropriate history and physical exam; review of lab, x-ray data, and other ancillary services, where appropriate; assessment; and plan for care (including discharge plan, if appropriate).

■ Past and present diagnoses should be accessible to the treating and/or consulting physician.

■ The reasons for and results of x-rays, lab tests, and other ancillary services should be documented or included in the medical record.

■ Relevant health risk factors should be identified.

■ The patient's progress, including response to treatment, change in the treatment, change in diagnosis, and patient non-compliance, should be documented.
■ The written plan for care should include, when appropriate: treatment and medications, specifying frequency and dosage, any referrals and consultations; patient/family education; and specific instructions for follow-up.

■ The documentation should support the intensity of the patient evaluation and/or the treatment including thought processes and the complexity of medical decision-making.

■ All entries to the medical record should be dated and authenticated.

■ The CPT/ICD-9 codes reported on the health insurance claim form or billing statement should reflect the documentation in the medical record.

■ Document the fact that the patient's consent and informed consent, when required, was obtained.
■ Document any errors. Errors or mistakes are not malpractice. Failing to record an adverse event can result in adverse consequences in terms of malpractice claims and Board complaints.

■ If there is an error or addition to charting – as mentioned above – simply place a line through the error, date it, initial it, and make a comment indicating where the correct entry may be found.

■ If the patient does anything inappropriate or engages in behavior that is unusual, document it. For example, if the patient asks the physician on a date or sends him or her gift that crosses the boundaries, document it and the physician’s response.

In sum, proper medical record keeping is important. Most malpractice and Board cases are decided on the facts. The facts in a health care provider’s case are usually established in writing in a patient record. It can be time-consuming but if you can create a system that keeps your records up-to-date and thorough, it will save you time and money in the long run. It is risk management at its best.

We also recommend having another set of eyes from outside your office – attorney, compliance company, peer review, etc. – review the records. Doctors and health care providers can be defensive during this process but it is the time to imaging the worst case scenario. In addition, the day-in-day-out part of the practice means that some records can slip through the cracks. A system that works is important but it needs to be reviewed on occasion. Office staff will not be as vigilant generally as the person who has the license and the employees need to evaluated on their record keeping skills. Excellent record keeping will help you protect your practice from meritless malpractice claims and your license.

Any questions or comments should be directed to: Tracy Green is a principal at Green & Associates. The firm focuses its practice on the representation of professionals, with an emphasis on health care professionals.


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