Legally Protective Charting Sticks to the Facts
August 1, 2022
By Stacey Kusterbeck
Charts containing emotional statements, accusations, and speculations might be compelling reading, but they are legally problematic. “‘Straying from the facts’ is a recurring theme in defense of ED claims involving documentation,” says John Burton, MD, chair of the Carilion Clinic’s department of emergency medicine in Roanoke, VA.
EPs who chart in this manner complicate the defense of malpractice claims. Burton gives this example: “I requested Dr. Jones admit the patient to his service. Dr. Jones seemed confused by my request. He became wildly argumentative, with statements indicating his lack of support by the hospital to cover his busy service on the inpatient wards.”
“In reality, the EP has no insight to any of that, and is making some far-reaching conclusions,” Burton says.
Burton offers this example of better documentation: “Dr. Jones was contacted to admit the patient to her service. She refused the admission. I contacted the administrator on call to determine an appropriate alternate admission service or to assist in discussing admission with Dr. Jones. Dr. Jones contacted me and indicated she would take the patient to her service.”
Burton has seen charts that include unnecessary adverbs and adjectives, with guesses about other providers’ motivations. If an on-call specialist refused to respond to a request for an ED consult, the EP should state that fact in the medical record. “The ED physician should not make editorial comments about circumstances they believe may be motivating the physician not to come to the ED,” Burton offers.
One EP speculated an on-call physician refused to come to the ED because of a contract dispute with the hospital. In general, says Burton, “sticking with the facts as they are known to the ED physician is the best way to proceed.”
This also applies when patients refuse diagnostic tests, such as a recommended CT for a patient with a head injury. The EP should document the patient refused the diagnostic test. However, the EP should not speculate on record as to the patient’s motivation. The EP also does not need to justify why he or she recommended the study by citing all the relevant literature references.
Burton says a better approach is to chart that the patient refused the recommended test, that the EP advised the patient of the consequences, and the patient’s reason for declining the test. “The physician should enter that response factually into the medical record, instead of leaving this open to speculation at a later date,” Burton says.
If a patient refuses a recommended head CT scan after a traumatic injury, Burton suggests this documentation: “I indicated to the patient he should undergo a CT to evaluate his head injury today. He refused this test. He stated he did not want the head CT because of the long wait time and also was concerned it might not be covered by insurance. I informed the patient the head CT is my recommendation, and that not obtaining one could lead to a delay in diagnosis of a more serious condition, leading to loss of life, limb, or function. The patient acknowledged this possibility, yet still refused the test. He complied with my request that he sign the record indicating his refusal of this recommendation.”
Good documentation on patient refusals avoids inflammatory language such as, “I strongly advised the patient” or “The patient clearly needs this test.” The chart should reflect “a simple statement of facts and the patient’s reasoning,” Burton says.
The same is true if a patient with asthma refuses a prednisone prescription at discharge. Burton says an example of good documentation would be: “The patient refused steroid therapy during the visit, as well as for outpatient therapy. The patient stated the last time she was on prednisone, she experienced agitation (‘I couldn’t sleep, and I was having nightmares.’). I indicated this generally is a dose-dependent side effect of outpatient steroids, and informed her there were alternatives to dosing and options for the specific steroid we could use. She still refused, at which point I requested she sign and initial her refusal documented in the record, acknowledging my counsel that this decision could carry life-, limb-, or organ function-threatening consequences.”
Charts containing emotional statements, accusations, and speculations might be compelling reading, but they are legally problematic.
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