Document to defeat malpractice suits

An experienced expert witness offers 10 tips for hospitalists.


When thinking about malpractice risk and documentation, the key thing to remember is context, G. Randy Smith Jr., MD, MS, told attendees at the 2019 Midwest Hospital Medicine Conference, held in Chicago in October.

As the care for a hospitalized patient is initially being documented, “everybody's living in real time with us—the nurses, our consultants, the patient—and everybody involved kind of understands the context of the moment,” said Dr. Smith, an assistant professor of medicine and a hospitalist at Northwestern University in Chicago who has served as an expert witness in lawsuits.

Detailed documentation during patient care can reduce a physicians risk of ending up in a courtroom later Photo by Getty Images
Detailed documentation during patient care can reduce a physician's risk of ending up in a courtroom later. Photo by Getty Images

But years later, at the point when a malpractice claim would typically be judged, the context has changed significantly.

“When your documentation gets into a lawsuit, the relationship is flipped, right? Everybody's trying to read your documentation to recreate the context,” he said. “Craft your documentation in such a way that many years down the road, somebody can read it and understand what the context was; that's a little different than just writing during a busy day to try to communicate whatever you need for billing or for communication about care.”

If that sounds difficult to do, don't worry. Dr. Smith broke down his big-picture documentation advice into 10 actionable tips.

1. Minimize cut and paste.

Overuse of cut and paste carries multiple risks. First, if you move your own words from one day to another without careful editing, the information may be inaccurate. “You render a note which becomes invalid and indefensible. You might have seen a note like this, where someone says in error that [a patient was] intubated and extubated and intubated and extubated all in the same day,” said Dr. Smith.

There are also risks to reusing others' words. “If you cut and paste somebody else's words like a radiology report, those words become your own. You have to justify those findings yourself as if they're your own, and then you also have to justify why you chose to cut and paste that aspect of information, as opposed to something else in the vast expanse of [a patient's] medical chart,” he said.

2. Use abbreviations with caution.

“This is where the issue of context becomes very important,” he said. Suppose a patient has a rare disease and you use an abbreviation for it. “Everybody knows what the abbreviation means at the time, but three years down the road, you can actually spend time in a deposition or with opposing counsel arguing over what that abbreviation meant,” said Dr. Smith.

In court, abbreviations can even be misinterpreted as something offensive. “There has been at least one case I know of where SOB was successfully argued by a plaintiff to be an insult put into the chart,” he said.

Such a misunderstanding may seem deliberate, but other abbreviations can be reasonably understood in different ways. “‘Dw Dr. So and So.’ This one is actually very dangerous. Does it mean discuss with or discussed—past tense—with?” said Dr. Smith. This uncertainty leaves room for a physician involved in a lawsuit to argue he was never consulted, he explained.

This doesn't mean you have to avoid abbreviations entirely, though. “If you take the approach you see in the medical literature where every time an abbreviation is used you actually define it for the first time and then you use the abbreviation in the rest of the note, then you can copy that approach and save yourself some time,” he said.

3. Shorten notes.

“When you write a progress note for the day, it should reflect what your thoughts are at the moment. If your thoughts change four hours later, that's OK. But one thing that you need to avoid … is this concept of using the daily note as a running continual gross summary of everything that's happened during the hospital course,” said Dr. Smith. Don't bring information forward from an old note to a new one if it's no longer relevant, he advised.

This strategy offers multiple benefits. “It actually makes your note a little bit more likely to be read and understood … not only by the expert witness or lawyers, but by people who are helping you take care of the patient at the time,” he said.

4. When in doubt, quantify.

Don't document something as simply “abnormal” when it's possible to be more specific. “‘Patient complains of weakness.’ … Was it a little bit? Enough to where you thought that there was a spinal cord compression–really, really, really severe?” said Dr. Smith. “If you don't quantify, your finding is up for debate.”

5. Consultation doesn't necessarily protect you.

The effect of requesting a consult on a hospitalist's malpractice liability depends on how much the consultant's procedural skills and expertise on the subject differ from what a hospitalist is expected to possess. For example, asking an ophthalmologist to use a skill hospitalists don't have to diagnose retinal detachment is much different from asking a hematologist to consult on anticoagulation for pulmonary embolism, Dr. Smith explained.

If in the latter case “you get the wrong guidance, and you follow it, and you just say, ‘Well, that's what hematology told me to do,’ it doesn't protect you at all,” he said, “because most expert witnesses will be able to make a case that the standard of care is such that there are hospitalists throughout the country who can take care of pulmonary embolism without hematologists and that you should be able to do this on your own.”

The documentation solution to this issue is to include your own perspective and expertise when describing the consultation. “Instead of saying ‘Starting enoxaparin as recommended by hematology,’ say something like, ‘Have consulted with hematology, and I agree that we should start enoxaparin despite the risks,’” said Dr. Smith.

6. Chart a differential diagnosis.

For both good patient care and malpractice mitigation, hospitalists should make it a habit to consider, and document, possible other causes of patients' illnesses, Dr. Smith advised. “It's OK in your documentation to show doubt. You're actually better off if the patient's chart actually shows that you were engaged and thinking and you weren't entirely certain, but you were weighing possibilities,” he said.

7. It's OK to reference the literature.

This recommendation applies to treatments that differ from normal day-to-day care. “If you feel like you're doing something which is maybe new at your institution … or if you feel like there's a high-risk situation, you want to share evidence which is buttressing what you've decided to do … that can do a lot to defend you,” said Dr. Smith. “It shows to everybody involved that you're thinking about things and you actually have some sort of evidence to back up what you were doing.”

To do this, simply cite the relevant study or guideline in the note documenting the related treatment choice.

8. Chart your doubts.

“The classic example is anticoagulation in the setting of bleeding risk,” Dr. Smith said. “If you can quantify the risk by using some sort of a risk score calculator and writing that down, that will help you a lot.” If you are concerned that a treatment carries significant risks, it's also good to document a plan to monitor and mitigate them, he added.

Of course, those doubts and risks should also be disclosed to the patient, and that disclosure should also be documented, Dr. Smith noted. In particularly risky or uncertain situations, consider pulling a witness—ideally an uninvolved clinician—into the conversation to verify in the record that the disclosure occurred.

9. Consider deferring some decisions to the patient.

Even better than explaining and documenting tough decisions is letting the patient and/or family make them, when they are capable and sufficiently informed. “For a plaintiff's attorney to look at a chart and see that the decision to proceed, after a full explanation of risk and benefits … was actually made by the patient … it puts you in a very good stead,” said Dr. Smith.

10. Do not alter the chart after the fact.

This final tip is actually “nondocumentation guidance,” Dr. Smith noted, and it applies when you've been notified of a malpractice claim.

In such situations, many physicians feel the urge to go review the chart, he explained. “And if that urge slips too far, you might actually get the urge to go back and alter notes. Altering notes will not help you. In fact, altering notes after the fact is probably the quickest way to ruin your credibility as a witness.”

All of the widely used electronic health records track and timestamp documentation changes, and a physician having made changes after being sued can be used to dramatic effect by a plaintiff's attorney at trial, according to Dr. Smith. “It's absolutely indefensible, and there's nothing that an expert witness can do to help you.” After notice of a lawsuit, “seek whatever support you need. Talk to risk [management], talk to your local legal representation, but don't touch the chart,” he said.

The 10 tips are designed to reduce malpractice liability, but applying them in daily practice can offer other benefits as well, Dr. Smith concluded. “It helps to foster professional growth. It'll also help to clarify communication with peers in real time, which can head off a lot of the communication factors that lead to lawsuits,” he said.