Bariatric Times July/August 2007

10 Legal Perspective Bariatric Times • July/August 2007 Malpractice Preventative Maintenance: Record Protocols and Happy Lawyers by Julie M. Janeway, BBA, MSA, JD alpractice cases are, unfortunately, a guaranteed side effect of practicing medicine or working in the healthcare field. It’s not if you get sued, it’s when you get sued. When you get sued, you will inevitably have to scrounge up every record that ever even came in contact with your patient or his records, as well as every person who did the same. “The medical record creates a legal document which reflects the care provided to a patient and, in a courtroom setting, it may be likened to a witness whose memory is never lost.”1 Your defense attorney will need those records to determine what was, and potentially more importantly, what wasn’t done. In fact, your attorney isn’t the only person that will make that determination. Of course the M plaintiff’s attorney and legal team will get a crack at the records. The claims analyst at the insurance company will review the records; the expert witness swearing out any necessary Affidavits of Meritorious Defense2 will review them; attorneys for other defendants in the case will see them; and the attorney’s paralegals, financial and medical experts, and other witnesses and deponents will also go through the records carefully. So the records play a significant role in any malpractice case. The plaintiff’s attorneys are looking for anything unusual, out of the ordinary, and hopefully dead outside the standard of care. Defense attorneys are looking for meticulous records that exonerate the defendant(s) and show that it was just another case of bad things happening to good people, not bad people happening to good people. So what makes a defense lawyer happy when reviewing medical records in a case? Here is a list of things to remember and go over with your staff so that when you have that case pop up, you have a very happy lawyer. Remember: Happy lawyers mean happy doctors! Happy doctors mean happy people who work with happy doctors. Keep contemporaneous records and be able to testify under oath that they were contemporaneous. Don’t play catch up on your charting. We all hate charting. Lawyers do it too, except we call it billing. It’s extremely important to chart each patient as you go, not do them all at the end of the day, or worse, at the end of the week. You need to get down all the details while fresh in your mind, not when they become clouded by many other experiences throughout the day or week. You must be able to testify under oath (that means truthfully!) that you charted this while, or almost while, it was happening.3 Get dictation done quickly, review it, and place it in the file immediately. Making sure that dictation is typed quickly is not usually the problem. Generally, if you’re dictating during or right after seeing a patient, the transcriptionists are getting to it within 48 hours. The big problem tends to come when the transcription is returned. The medical professionals who dictate the record entry often never review it for accuracy, or to fill in blanks left by the transcriptionist when something was not understandable. After failing to receive reviews or corrections, the transcripted report often ends up in

Table of Contents Feed for the Digital Edition of Bariatric Times July/August 2007

Cover Editorial Message Table of Contents Editorial Board Letter to the Editor Malpractice Preventative Maintenance: Record Protocols and Happy Lawyers Resolution of Fibromyalgia Following Laparoscopic Roux-en-Y Gastric Bypass University General Hospital Bariatric Program at University General Hospital Journal Watch Category List Trade Name Index Company Index Products and Services

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