Lorman Education Services - Medical Records as a Defense to Your License
Medical Records as a Defense toyour License to Practice YourProfessionSteven L. Simas, Esq.
Steven L. Simas Experience Simas & Associates, Ltd. –2002 to present Deputy Attorney General, Office of the Attorney General California Academy of Attorneys for Health Care Professionals Legal Counsel, California Physical Therapy Association Legal Counsel, California Registered Veterinary Technician Association Practice Areas Health Care Law Professional Licensing and Regulation Civil Litigation and Appeals Employment Law and Workplace Regulation
Medical Board and Other Agencies’Expectations for RecordkeepingPart I:
Medical Board’s Standards forMedical Recordkeeping Medical Practice Act –Business & ProfessionsCode §2266 provides: The failure of a physician and surgeon to maintain adequateand accurate records relating to the provision of services totheir patients constitutes unprofessional conduct. What is “adequate and accurate”?Depends upon clinical circumstancesMatter of expert opinion
Medical Board’s Standards forMedical RecordkeepingA Comprehensive Patient Record Contains:Patient’s condition and treatmentAny consultation informing the patient of his or herconditionDiscussion of intended procedures, risks, hazards, andalternative therapyAny instructions given to a patient by telephone
Medical Board’s Standards forMedical Recordkeeping Any cautions regarding prescription drugs that mayinterfere with a patient’s occupation or driving safely Special note should be made of any allergies orsensitivities Surgical records which are comprehensive andpromptly dictated or written. The anesthetist shouldrecord both pre- and post-operative information.
Medical Board’s Standards forMedical Recordkeeping Instructions to patients on follow-up care. Pathology and X-ray reports. The justification for treatment. Source: Guide to the Laws of Practicing Medicine by Physicians and Surgeons, Sixth Edition,2010, Medical Board of California(http://www.mbc.ca.gov/publications/laws_guide.pdf)
Contrast: The Physical Therapy Board’sStandards for Recordkeeping Unlike the Medical Board, this is governedby Physical Therapy Board Regulation: Title 16, Cal. Code Regs. § 1398.13 provides that aphysical therapist shall document and sign specificthings in the patient record. Like the Medical Board, failure to do so can be“unprofessional conduct.” (Bus. & Prof. Code §2660(i)).
Contrast: The Physical Therapy Board’sStandards for Recordkeeping Board Regulation 1398.13 requires the following to bedocumented in the record:(1) Examination and re-examination(2) Evaluation and reevaluation(3) Diagnosis(4) Prognosis and intervention(5) Treatment plan and modification of the plan of care(6) Each treatment provided by the physical therapist or aphysical therapy aide(7) Discharge Summary
Contrast: The Physical Therapy Board’sStandards for Recordkeeping Contrast with Medical Board recordrequirements: PT Board does not rely upon standard of care Very specific requirements Does not rely upon “expert testimony” to determineviolation More objective? More nitpicky
Medical Board’s Standards forMedical Recordkeeping Lessons and Final Thoughts What is a “complete” or legal medical record depends uponthe profession of the health care provider Proper records can be the subject of an expert opinion Some licensing boards have very specific requirements Failure to keep proper records is “unprofessional conduct”for most licensed health care providers
How Licensing agencies buildcases upon medical recordsPart II:
How Licensing Agencies Build Cases UponMedical RecordsAfter a licensing board receives a formalcomplaint or has other reason to investigate, ithas the following tools to do so: Subpoenas Release from complaining party Interviews Hospital records
How Licensing Agencies Build Cases UponMedical RecordsSubpoenas: Under the Administrative Procedure Act (Govt. Code § 11180), thehead of each department may issue a subpoena to investigate: All matters relating to the business activities and subjects of thedepartments jurisdiction; The violation of any law or any rule or order of the department;and Any other matter that some rule of law authorizes thedepartment to investigate.
How Licensing Agencies Build Cases UponMedical Records Other methods of licensing Boards obtaining records: Release from complaining party or patient (oftenwithout licensee’s knowledge) 805 Reports/Peer review reports Reports of Settlement Hospital records
Accusations and Citations ForImproper RecordkeepingPart III:
Accusations and Citations For ImproperRecordkeeping Licensing Board actions against health care professionals Accusations Citations Recordkeeping violations (grounds for license discipline) Failure to keep “adequate” records Failure to keep records Failure to document treatment in the records Failure to document things required by Board (e.g. dischargesummary for PT Board)
Accusations and Citations For ImproperRecordkeeping How recordkeeping problems manifest in alicensing hearing: The Golden Rule : “If it is not in the record, it did nothappen”Difficult patientReferralsHistory & PhysicalPrescribing casesPain management Medical records and use of experts in licensing defense cases
Accusations and Citations For ImproperRecordkeeping If the licensee met the standard of care, itmust be in the recordDefensive recordkeepingCan be the difference between a finding ofnegligence or not
Accusations and Citations For ImproperRecordkeeping Medical records and use of experts in licensingdefense cases Medical records are the tool of the expertwitnesses Board experts look first at medical records Medical records can cause license discipline orother issues even if care was proper
Accusations and Citations For ImproperRecordkeeping ExamplesVeterinary Board overnight hospitalization caseOvernight monitoring not in recordVeterinarian provided uncontroverted testimonyALJ found “no overnight monitoring”Vision insurance auditAll information regarding charges was in recordAuditors could not find itFinding “optometrist sent in incorrect and unjustifiedcharges”Medical Board LASIK caseInformed consent records“Eval” versus “Reeval” in cataract case
Steven L. Simas, Esq.SIMAS & ASSOCIATES, Ltd.Government & Administrative LawSacramento -916.789.9800San Luis Obispo -805.547.9300www.simasgovlaw.com