Veterinary Medical Records as a Defense to Your License
LOOMIS BASIN VETERINARY CLINIC WINTER LECTURE SERIES Medical Records as a Defense to your Veterinary License
Experience • Simas & Associates, Ltd. –2002 to present • Deputy Attorney General, Office of the Attorney General • American Veterinary Medical Legal Association • California Academy of Attorneys for Health Care Professionals • Legal Counsel, California Physical Therapy Association Practice Areas • Veterinary Medical Board and Malpractice Defense • Health Care Law • Professional Licensing and Regulation • Civil Litigation and Appeals • Employment Law and Workplace Regulation
Veterinary Medical Board’s Standards for Recordkeeping • Test Your Knowledge • What the Board Requires in your Records Veterinary Medical Records Compared to Medical Records How Licensing Boards Build Cases Using Medical Records Accusations and Citations for Improper Recordkeeping
QUESTION:When conducting a physical examination of a patient, it is proper to record just “normal” if the readings/data are normal?
False-probably not. • Veterinary Medical Board Regulations (to be discussed) provide that you must record “data, including that obtained by instrumentation, from the physical examination.” Is just writing “normal” recording “data”?
HYPOTHETICAL:Jojo, a 5 year old beagle, presents on referral from the regular veterinarian to a multi- speciality emergency clinic for a post surgical pyometra consult with an internal medicine specialist Dr. McGillicuddy at 4:48 p.m. Dr. McGillicuddy conducts a physical exam upon presentation and refers the matter at 5:24 p.m.to the surgeon Dr. Barnabus whose surgical practice and office are at the same clinic.
Dr. Barnabus reviews the record with Dr. McGillicuddy, including the results of her physical exam. Dr. Barnabus performs surgery at 5:48 p.m. and saves the dog’s life. Does Dr. Barnabus have to perform a separate physical exam?
Veterinary Board said YES and sent Dr. Barnabus an “Education Letter” which stated: • The Veterinary Medical Board has completed its internal investigation of the above referenced complaint, and is closing this case with this letter of education. Although the Board did not take any action against your license at this time you are advised that any violation of the practice act, including regulations of the Board, can result in the Board pursuing enforcement action including, but not limited to, the issuance of a citation and fine.
In an effort to educate licensees and to maintain the minimum standards of practice in California, the Board is taking this opportunity to remind you that as a licensee you are obligated to be in compliance with the laws and regulations governing veterinary medicine in CA at all times. The Board is advising you to take time to familiarize yourself with the information required in all medical records and to take steps to insure that in the future your records contain all required information.
The Board cited its recordkeeping regulation 2032.3, subdivision (7) which provides that the record must contain: (7) Data, including that obtained by instrumentation, from the physical examination (No physical exam findings recorded for March 3, 2011); and That there has to be a physical examination 12 hours prior to anesthesia (Regulation 2032.4).
QUESTION:A veterinarian must keep records for which following period according to the Board? a) 4 years from the last visit b) 3 years from the first visit c) 3 years from the last visit d) 4 years from the last visit
ANSWER: c) 3 years from the last visit according to Title 16, California Code of Regulations, section 2032.3 Can be a defense in a Veterinary Medical Board Investigation
QUESTION: Mrs. Jones brings her cat Fluffy in for boarding. The cat suffers from diabetes. Mrs. Jones is going on a cruise for 10 days and will be unreachable. STOP: see where this is headed yet? Coast Hills Veterinary Clinic takes the cat in for boarding. On day two of the Fluffy’s stay, she gets really sick, vomiting, etc. and needs IV fluids. What should the attending veterinarian do? Can the doctor just treat Fluffy in the kennel?
ISSUES: Was there a physical exam? Was there a veterinarian/patient/client relationship? Boarding v. Hospitalization—big issue for the Board regarding recordkeeping.
Veterinary Practice Act Provides (Bus. & Prof. Code § 4855): A veterinarian subject to the provisions of this chapter shall, as required by regulation of the board, keep a written record of all animals receiving veterinary services, and provide a summary of that record to the owner of animals receiving veterinary services, when requested. The minimum amount of information which shall be included in written records and summaries shall be established by the board. The minimum duration of time for which a licensed premise shall retain the written record or a complete copy of the written record shall be determined by the board.
Veterinary Medical Board Regulations Title 16, California Code of Regulations, §2032.3 provides: (a) Every veterinarian performing any act requiring a license pursuant to the provisions of Chapter 11, Division 2, of the code, upon any animal or group of animals shall prepare a legible, written or computer generated record concerning the animal or animals which shall contain the following information: • (1) Name or initials of the veterinarian responsible for entries. • (2) Name, address and phone number of the client. • (3) Name or identity of the animal, herd or flock.
(4) Except for herds or flocks, age, sex, breed, species, and color of the animal. (5) Dates (beginning and ending) of custody of the animal, if applicable. (6) A history or pertinent information as it pertains to each animal, herd, or flocks medical status. (7) Data, including that obtained by instrumentation, from the physical examination. (8) Treatment and intended treatment plan, including medications, dosages and frequency of use.
(9) Records for surgical procedures shall include a description of the procedure, the name of the surgeon, the type of sedative/anesthetic agents used, their route of administration, and their strength if available in more than one strength. (10) Diagnosis or tentative diagnosis at the beginning of custody of animal. (11) If relevant, a prognosis of the animals condition. (12) All medications and treatments prescribed and dispensed, including strength, dosage, quantity, and frequency. (13) Daily progress, if relevant, and disposition of the case.
Recordkeeping for patients under anesthesia (Title 16, Cal. Code Regs. Section 2032.4) • For all surgeries under anesthesia, you must chart: Veterinarian Physical examination within 12 hours of the administration of general anesthesia Method of respiratory monitoring which “may” include Observation of animal’s chest movements; Observing rebreathing bag; or Respirometer Method of cardiac monitoring “shall be provided” and “may” include use of stethoscope or electrocardiographic monitor Recommend charting observation time for safe recovery
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
A Comprehensive Patient RecordContains:Patient’scondition and treatmentAny consultation informing the patient of his orher conditionDiscussion of intended procedures, risks,hazards, and alternative therapyAny instructions given to a patient by telephone
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.
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 with Medical Board recordrequirements: • Veterinary Board does not rely exclusively upon standard of care and judgment of practitioners • Veterinary Board has very specific requirements • Does not rely upon “expert testimony” to determine violation • More objective? • More nitpicky? • Which is better?
After a licensing board receives a formalcomplaint or has other reason toinvestigate, it has the following tools todo so: • Subpoenas • Release from complaining party • Interviews • Medical records
Subpoenas: 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.
Other methods of licensing Boards obtaining records (how your charts get to the Board): • Release from complaining party or patient (often without licensee’s knowledge) • Premises Inspections • 30 Day Demand Letter for Records Failure to respond as “unprofessional conduct” “Consulting veterinarian” v. “respondent” • Reports of Settlement • Other clinic’s records
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. anesthesia requires physical exam within 12 hours, discharge summary for PT Board, etc.)
How recordkeeping problems manifest in a licensing hearing: • The Golden Rule : “If it is not in the record, it did not happen” Difficult patient case Difficult client Owner-declined service Referrals History & Physical Prescribing issues Pain management
• 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 Can cause the Board to bring a case or not Alterations to record or amendments Can be viewed as “altering records” Scary examples: Relief veterinarian took set of records “home to complete” Veterinarian had separate “intake sheet” as part of record Amendments to computerized records
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
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. SimasSIMAS & ASSOCIATES, LTD. Government & Administrative Law Sacramento -916.789.9800 San Luis Obispo -805.547.9300 w w w .simasgovlaw .com firstname.lastname@example.org