Bariatric Times July/August 2007

Bariatric Times • July/August 2007 Legal Perspective not an issue that you need to be adding or defending when a case may be clearly narrowed to one specific standard of care issue that can be easily resolved. Noting patient affect and demeanor, and avoiding libelous statements. It is very important to note patient affect, demeanor, and with you at all times as an attorney and be willing to take it with you to jail if you are found in contempt of court in the zealous representation and defense of your clients.” As medical professionals who may work for corporations or individuals that may hold your jobs as blackmail to get you to falsify medical or billing records, you must always be willing to walk It is very important to note patient away from that job rather than falsify or be affect, demeanor, and attitude in a part of falsifying any records of any type. You charts, BUT A FINE LINE EXISTS are charged with the care of human beings, BETWEEN noting these and that even includes the billing for their care, characteristics and behaviors and and you should never put yourself in a position making libelous statements. that will make you have to lie on the stand about your own record entries, actions, or performance, attitude in charts, but a fine line or those of others. In the law we have exists between noting these a word for that. It’s called perjury,5 characteristics and behaviors and and it’s a felony in every state. making libelous statements. Libel is a On behalf of my brothers and defamatory statement made in writing sisters in law, I thank you for your without regard for its truth or falsity.5 time, consideration, and anticipated Being accurate in your charting and cooperation in these matters. saying what you mean and meaning what you say should take care of REFERENCES 1. Medical Record Documentation. Risk much of this, but be careful about Management Handbook. Yale-New Haven letting your own emotions dictate Hospital & Yale University School of Medicine Web site. 1997. Available at: what your write. If a particularly www.med.yale.edu/caim/risk/handbook/rmh_med belligerent and abusive patient ical_record.html. Accessed March 15, 2007. 2. Some states require the defense to file an irritates you, be sure not to note any Affidavit of Meritorious Defense or some such inappropriate or unprofessional similar document. This type of document is signed by a health professional the defense statements in the file. These attorney reasonably believes meets the statements, while they may be true, requirements for an expert witness under the can be claimed as libelous because it applicable statutes. It generally certifies that a health professional has reviewed the comwas known that others would see plaint and all medical records supplied by them, and creates a presumption that the attorney concerning the allegations contained in the complaint, states a factual basis the patient didn’t get the care he for the defense against each complaint, the deserved despite his bad attitude. Be applicable standard of practice, how compliance was made, and how the claim is not very clinical in writing about affect, related to the care and treatment rendered. demeanor, attitude and behavior. For example, see Michigan Compiled Laws Write like you only watched it 600.2912e. Legal Documentation Standards in Medical 3. through a window and it didn’t really Records. American Health Information happen to you. Limiting statements to Management Association Web site. 2007. Available at: www.ahima.org/infocenter/guideobjective observations of what you lines/ltcs/5.1asp. Accessed March 15, 2007. saw, heard, smelled, and physically 4. Overcoming Documentation Barriers. Hospital Payment Monitoring Program. Texas Medical felt or touched will aid in this effort as Foundation Web Site. 2006. Available at: well. www.tmf.org.pepp/docbarriers.html. Accessed Finally, write only what you March 15, 2007. did or did not do, not what others 5. Black, HC. Black’s Law Dictionary, Sixth Edition. New York, NY. West Publishing tell you to write about your Company; 1992. actions or performance. Again, this should go without saying but it can’t. ADDITIONAL READING 1. Micheletti, JA, Shlala, TJ. Documentation Rx: If you are charting or creating Strategies for Improving Physician Contribution records, you are responsible for the to Hospital Records. Journal of AHIMA 2006;77(2):66–8. content of your notations. Although 2. Ellison, J, Beldner, R. Hospital Records: What Do the doctrine of Respondeat Superior They Tell Us? National Forensic Center—The Expert and the Law 1984;4(5):2. makes your superiors responsible for your actions and performance as well,5 that doesn’t necessarily take the ADDRESS FOR CORRESPONDENCE: heat off you entirely. If you are ever Julie M. Janeway, BBA, MSA, JD, Little instructed to record that you did Victories™ Medical/Legal Consulting & something when you didn’t, or didn’t Training, 4371 Kinneville Road, Suite do something when you did, you must 200, Onondaga, MI 49264; Phone: (517) be willing to put your job on the line 589-5535; E-mail: in order to stand your ground and littlevictoriespress@msn.com. refuse to make false entries. As one of my favorite law professors used to tell us, “You have to carry a toothbrush http://www.med.yale.edu/caim/risk/handbook/rmh_medical_record.html http://www.med.yale.edu/caim/risk/handbook/rmh_medical_record.html http://www.ahima.org/infocenter/guidelines/Ites/5.1.asp http://www.ahima.org/infocenter/guidelines/Ites/5.1.asp http://www.tmf.org.pepp/barriers.html synovissurgical.com synovissurgical.com

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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