The Best Offense is a Good Defense – A Case for Defensive Documentation
Leaders from George Washington to Little League Coaches have inspired action with something akin to the idiom, “the best offense is a good defense.” In our two decades of auditing medical records, we’ve found this to be true. Defensive documentation can provide a wealth of intelligence into an organization’s clinical operations, provide opportunities for improvement, and help stave off unnecessary risk.
What is Defensive Documentation?
Defensive documentation, or the thorough, timely documentation of care to demonstrate quality standards have been met, is an increasingly vital practice for medical professionals.
Despite its name, defensive documentation is, in our view, neutral. What do we mean by that? Through our work on both plaintiff and defense matters, we have found that maintaining proper and complete records to support the level of care given in a healthcare facility is non-negotiable. Medical records will be used to help litigation claims – either for you or against you. Without defensive and thorough record-keeping, organizations expose themselves to unnecessary risk.
Consistent, thorough documentation may feel like one more thing on an ever-growing task list for healthcare providers, but failure to do so can have serious consequences. In addition to opening the organization up to the risk of litigation, contracts could be at stake, as Tenet Detroit recently experienced.
How Can Defensive Documentation Help?
Let’s explore how defensive documentation can support healthcare organizations. Below we look at three examples and how documentation, or lack thereof, can impact the legal outcomes.
The Scenario: A Covid-19-related wrongful death liability assessment noted incomplete documentation of oxygen saturation levels.
The Impact: Lack of proper record-keeping may result in an inability to support that the facility promptly detected, triaged, and isolated potentially infectious patients. With defensive documentation practices in place, the organization can double-check that documentation is complete and allow for quick follow-up to help keep holes in the record to a minimum.
The Scenario: EMR Assessments can make it difficult to prove individualized, person-centered care is being delivered.
The Impact: In this example, we reviewed a patient’s records receiving chronic opioid therapy. While their exam during an outpatient visit seemed reasonably comprehensive at first glance, upon further investigation, we found the physical assessments for four separate visits were identical – down to the punctuation missteps. We have seen this in acute care records as well, where multiple specialists come in and out daily with very little change in their notes. It’s hard to defend absolutely no change in a hospitalized patient in 24 hours. This is where proactive chart QA can identify and get ahead of activities that put the patient – and the organization – at risk.
The Scenario: A mid-sized regional skilled nursing facility faced an Immediate Jeopardy assessment pending related to alleged sub-standard wound care provided to one of their long-term residents over a ten month period. The resident had 13 wounds, and there were significant documentation gaps.
The Impact: With electronic medical records, particularly in long patient stays, the documentation is often “there”; it’s just a matter of actually putting your finger on it – which may sound easier than it is. While the CMS Survey team was still on site, the Med Law nurses were able to work with the regional nursing team and IT to comb through the EMR. They put a package together for the survey team’s consideration with 1500 pages of medical records and a memo of findings that supported the care the facility provided to the resident. This was a scavenger hunt that paid off because the documentation, for the most part, WAS there. Although the facility ultimately didn’t avoid the Immediate Jeopardy assessment, the work done to locate the “missing” medical records significantly reduced the period of non-compliance, saving the facility hundreds of thousands, if not millions of dollars in penalties. What you need for your case may be in the medical record somewhere. It just may take a 2nd or 3rd set of eyes to find it.
Our Recommendation
Facilities should review their incident documentation practices and minimally audit the chart when significant incidents occur. The medical record needs to objectively reflect details surrounding events before, during, and after patient events. If the story of what happened is only outlined in a document that’s not discoverable by plaintiffs, it will make defending the care provided even more difficult. This is a problem when care issues arise, and the only place the staff documents details of what happened is outside of the medical records in a QA privileged, non-discoverable file. Moreover, non-mandatory forms that run the risk of destruction over time may hold clues to the details of an incident, leaving holes in the medical record.
Often, the issue boils down to a missing key record, requiring the defense to try and recreate the story from ancillary documents or records that contradict one another, requiring the time and expense of a deeper forensic analysis to determine what actually happened in the case.
Seems Like an Obvious Choice
While most see the inherent value in defensive documentation, the practicality of implementing it can be hard. Leadership teams are faced with not enough time, not enough people, or not having the right expertise to assign to this task. If you have the right resources on your team, giving them adequate time to review records and identify one or two important holes can add value to a case and potentially provide opportunities to improve care delivery upstream. In the case of litigation, an early review can save your organization time and resources by allowing you to properly value a potential claim before it gets too far down the road.
While healthcare organizations continue to face staffing shortages, it may help to bring in outside support. Med Law Advisory Partners has decades of experience auditing medical records for litigation support and proactive health system improvement. If you’re ready to discuss how your organization could benefit from defensive documentation, Schedule a chat with Med Law Advisory Partners today.