Medical Records as a Defense to Your License


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2011 Lorman Education Series - Steven L. Simas.

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Medical Records as a Defense to Your License

  1. 1. Steven L. Simas, Esq.
  2. 2. 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
  3. 3. Part I:
  4. 4. 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
  5. 5. Medical Board’s Standards forMedical RecordkeepingA Comprehensive Patient RecordContains:Patient’s condition and treatmentAny consultation informing the patient of hisor her conditionDiscussion of intended procedures, risks,hazards, and alternative therapyAny instructions given to a patient bytelephone
  6. 6. 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.
  7. 7. 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 (
  8. 8. 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)).
  9. 9. 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
  10. 10. 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
  11. 11.  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
  12. 12. Part II:
  13. 13. 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
  14. 14. 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.
  15. 15. 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
  16. 16. Part III:
  17. 17. 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)
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. Steven L. Simas, Esq.SIMAS & ASSOCIATES, Ltd.Government & Administrative Law Sacramento -916.789.9800 San Luis Obispo -805.547.9300