Presentation by Steven L. Simas of Simas & Associates, Ltd. regarding the use of medical records as a defense to professional licensees.

1. Medical Records as a Defense to
your License to Practice Your
Profession
Steven L. Simas, Esq.

2. 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

3. Medical Board and Other Agencies’
Expectations for Recordkeeping
Part I:

4. Medical Board’s Standards for
Medical 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. Medical Board’s Standards for
Medical Recordkeeping
A Comprehensive Patient Record Contains:
Patient’s condition and treatment
Any consultation informing the patient of his or her
condition
Discussion of intended procedures, risks, hazards, and
alternative therapy
Any instructions given to a patient by telephone

6. Medical Board’s Standards for
Medical 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. Medical Board’s Standards for
Medical 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)

8. Contrast: The Physical Therapy Board’s
Standards 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. Contrast: The Physical Therapy Board’s
Standards 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. Contrast: The Physical Therapy Board’s
Standards 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. Medical Board’s Standards for
Medical Recordkeeping
 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. How Licensing agencies build
cases upon medical records
Part II:

13. How Licensing Agencies Build Cases Upon
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. How Licensing Agencies Build Cases Upon
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
department's 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. How Licensing Agencies Build Cases Upon
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. Accusations and Citations For
Improper Recordkeeping
Part III:

17. Accusations and Citations For Improper
Recordkeeping
 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. Accusations and Citations For Improper
Recordkeeping
 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
 Medical records and use of experts in licensing defense cases

19. Accusations and Citations For Improper
Recordkeeping
 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. Accusations and Citations For Improper
Recordkeeping
 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. Accusations and Citations For Improper
Recordkeeping
 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. Steven L. Simas, Esq.
SIMAS & ASSOCIATES, Ltd.
Government & Administrative Law
Sacramento -916.789.9800
San Luis Obispo -805.547.9300
www.simasgovlaw.com