Steven L. Simas Experience Simas & Associates, Ltd. –2002 to present Deputy Attorney General, Office of the Attorney General Vice President, California Academy of Attorneys for Health Care Professionals Legal Counsel, California Physical Therapy Association Practice Areas Health Care Law Professional Licensing and Regulation Civil Litigation and Appeals Employment Law and Workplace Regulation
Medical Board’s Standards forMedical Recordkeeping Medical Practice Act –Business & Professions Code §2266 provides: 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. What is “adequate and accurate”? ○ Depends upon clinical circumstances ○ Matter of expert opinion
Medical Board’s Standards forMedical RecordkeepingA Comprehensive Patient RecordContains:Patient’s condition and treatmentAny consultation informing the patient of hisor her conditionDiscussion of intended procedures, risks,hazards, and alternative therapyAny instructions given to a patient bytelephone
Medical Board’s Standards forMedical Recordkeeping Any cautions regarding prescription drugs that may interfere with a patient’s occupation or driving safely Special note should be made of any allergies or sensitivities Surgical records which are comprehensive and promptly dictated or written. The anesthetist should record 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 governed by Physical Therapy Board Regulation: Title 16, Cal. Code Regs. § 1398.13 provides that a physical therapist shall document and sign specific things 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 be documented 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 a physical therapy aide ○ (7) Discharge Summary
Contrast: The Physical Therapy Board’sStandards for Recordkeeping Contrast with Medical Board record requirements: PT Board does not rely upon standard of care Very specific requirements Does not rely upon “expert testimony” to determine violation More objective? More nitpicky
Lessons and Final Thoughts What is a “complete” or legal medical record depends upon the 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 Build CasesUpon Medical Records After a licensing board receives a formal complaint or has other reason to investigate, it has the following tools to do so: Subpoenas Release from complaining party Interviews Hospital records
How Licensing agencies build casesupon medical recordsSubpoenas: Under the Administrative Procedure Act (Govt. Code § 11180), the head of each department may issue a subpoena to investigate: ○ All matters relating to the business activities and subjects of the departments jurisdiction; ○ The violation of any law or any rule or order of the department; and ○ Any other matter that some rule of law authorizes the department to investigate.
How Licensing agencies build casesupon medical records Other methods of licensing Boards obtaining records: Release from complaining party or patient (often without licensee’s knowledge) 805 Reports/Peer review reports Reports of Settlement Hospital records
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. discharge summary for PT Board)
Accusations and Citations For ImproperRecordkeeping How recordkeeping problems manifest in a licensing hearing: The Golden Rule : “If it is not in the record, it did not happen” ○ Difficult patient ○ Referrals ○ History & Physical ○ Prescribing cases ○ Pain management
Accusations and Citations For ImproperRecordkeeping If the licensee met the standard of care, it must be in the record ○ Defensive recordkeeping ○ Can be the difference between a finding of negligence or not
Accusations and Citations For ImproperRecordkeeping Medical records and use of experts in licensing defense cases Medical records are the tool of the expert witnesses Board experts look first at medical records Medical records can cause license discipline or other issues even if care was proper
Accusations and Citations For ImproperRecordkeeping Examples ○ Veterinary Board overnight hospitalization case Overnight monitoring not in record Veterinarian provided uncontroverted testimony ALJ found “no overnight monitoring” ○ Vision insurance audit All information regarding charges was in record Auditors could not find it Finding “optometrist sent in incorrect and unjustified charges” ○ Medical Board LASIK case Informed consent records “Eval” versus “Reeval” in cataract case
Steven L. Simas, Esq.SIMAS & ASSOCIATES, Ltd.Government & Administrative Law Sacramento -916.789.9800 San Luis Obispo -805.547.9300 www.simasgovlaw.com