Documentation Pointers to Avoid Liability and Malpractice
“Medical Records Requests” and “Breach of Confidentiality” are the leading claims issues for social workers. These claims trigger lawsuits, licensing board inquiries, and HIPAA information breach liability, particularly regarding HIPAA HITECH 45 CFR Part 160, that holds social workers liable for third-party (employee or a vendor of the social worker), and first-party breach (social worker) client information breach. Your NASW Risk Retention Group offers a variety of Cyber Liability Choice Select and Cyber Device insurance products that protect you. The NASW Risk Retention Group Professional Liability insurance policy has some first party (social worker) coverage for records breach as well.
Here are some practice tips that you need to know about the actual client records.
A malpractice judgment can hurt you personally and professionally. Time and again while malpractice insurance claims cases are adjudicated, we find that your file documentation may be the only case evidence that protects you from what your client’s lawyer says in the lawsuit filed against you. Credible documentation legally accepted, requires an accurate record of care your client receives, and evidence that competence was provided in counseling. Your client file notes should be contemporaneous, honest, and accurate. Do not write adverse subjective comments about the client.
- Note the date and time along with the care provided. In emergency situations or unplanned visits to your office by disturbed clients, make sure that you speak with the client immediately and in person to determine the situation because the client may harm themselves, property, or someone else. Relying on your administrative assistant as the buffer in these situations will make you liable for malpractice lawsuits.
- Be sure you note in the records exactly what you delivered in terms of services. Inaccurate statements will enable a plaintiff’s lawyer to tear your defense to shreds.
Avoid exaggeration or misinformation while writing your client records.
- All client records are subject to a subpoena. You must write clearly and thoroughly in anticipation of an eventual challenge by a lawyer in a lawsuit against you and examination in court.
Document each client as a unique patient with specific attitudes and cultural values. Always document next steps in a follow-up proactive plan, even if treatment sessions terminate. Document that. Include the important elements. If a referral is required, indicate that detail in the records.
- Answer key questions during emergencies such as: When did treatment start? Who was notified, such as family members? How were the client’s behavior and response? If late entries are made, which is common during emergencies, clearly record the date and time of the late entry. Never alter client records. That is a criminal act, and you may lose your insurance coverage as well.
As a counselor, keep these session elements in mind and document them clearly in the client records:
- Purpose: Define the reasons for counseling and how it was initiated.
- Respect: The client is a unique. Accept that, even if you do not agree with the client’s values and beliefs.
- Communicate: Create two-way communication to build trust and use language, non-verbal, gestures, and be a good listener. Record everything in your documentation notes.
- Flexibility: Adjust your interpersonal style and counseling style to the client to nurture the relationship session.
- Guidance: Guide the client through treatment and problem resolution, again while documenting everything clearly.
Document your final thoughts at each session including actions to pursue. If you forget and fail to take the next steps, you will be vulnerable to a lawsuit.
Again, if you do write or amend anything in your client’s file after the therapy session, initial the addition, date it, and also include the time of day. Also, indicate that the change is a late entry. By doing this, you will not be as open to accusations of making false statement records after the fact. Falsifying records, I will result in loss of license and the malpractice case filed against you. Criminal charges could also be filed against you.
Part of good client care is proper records documentation and protection. Good documentation means a better defense against a lawsuit, or even keeping you out of court in the first place.
Published March 2016