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Transcript – Episode 1: Documentation Pointers to Avoid Liability and Malpractice

Avoiding Malpractice Tips

Resources and References

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Hello, everyone. Thank you for joining our podcast today. This is Phil Lawson, Vice President of Product Development and Risk.

Today, we’ll talk about documentation pointers to avoid liability and malpractice, but before I begin, I must say that your healthcare professionals are to be congratulated for the noble work that you do and be recognized for the positive difference that you bring to people’s lives every day. You are all healing change agents, helping people throughout all walks of life, making life better.

There’s no greater cause for your passionate and skilled contributions to people. That is why we have your back here at The Risk Retention Group, that the policyholders own that’s insuring them. We are dedicated to your wellbeing and your protection. Our nation truly values your services now and into the future as shown by the following statistics. You may be interested to know that the US Department of Labor, Bureau of Labor statistics in 2016 forecasted the following to occur for the next decade through 2026. The healthcare field is booming. A look at the fastest-growing 30 occupations of all occupations in the nation indicates that eight are in the allied health sector. This sector contains a variety of healthcare and behavioral healthcare workers and a wide variety of related occupations and therapies. These eight occupations account for five million workers today and over 13 million workers in 10 years, which is a 32% growth rate over the decade. That’s four times the average growth rate compared to all occupations in the US. You are working in a truly growing, important, and highly valued field.

Let’s talk about documentation pointers to avoid liability and malpractice. Medical records requests and breach of confidentiality are the leading claims issues that we see for healthcare workers today. These claims trigger lawsuits, licensing board inquiries, and HIPAA information breach liability issues, particularly regarding HIPAA HITECH 45 CFR part 160 which holds healthcare workers liable for the third party, that’s employee or a vendor of the healthcare worker, and the first-party breach which is the healthcare worker, for client information breach. Your Risk Retention Group offers a wide variety of cyber liability, choice select and cyber device insurance products to produce you. The Risk Retention Group professional liability insurance policy has some first-party coverage for the healthcare worker for records breach as well.

Now, here are some practical tips that you need to know about actual client records. A malpractice judgment can hurt you professionally as well as personally. 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 a lawsuit filed against you in court. Credible documentation legally accepted requires an accurate record of care of your client services and evidence that competence was provided in counseling. Your client file note should be contemporaneous, honest, and accurate. Do not write adverse subjective comments about the client.

Proper documentation includes several of these following elements. 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 harm 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 by the 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 and who, how were the client’s behavior and response. If late entries are made, which is very common during emergencies, clearly record the date and time of each late entry. Never alter the client records. This is a criminal act and you may lose your insurance coverage as well.

Here are some key elements of basic counseling. As a counselor, keep these session elements in mind and document them clearly in the client records. The first is the purpose. Define the reasons for counseling and how it was initiated. Next is respect. The client is unique. Accept that. That’s a fact of life, even if you don’t agree with the client’s values and beliefs. Third, communicate. Create two-way communication to build trust and use language, non-verbal language, 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. The last element is guidance. Guide the client through treatment and problem resolution, again, while documenting everything clearly.

Your client records must correspond to the therapy session. Failure to accomplish that leads to a challenge of the facts and a challenge of your counseling methods, which leaves you vulnerable in a lawsuit. Document the client’s status continuously throughout the treatment sessions. Recording should be converted to a written format with your treatment session notes. Keep the records locked safely and securely, even after you leave the profession. Also, in the event that a burglar opens the file drawer where your client records are stored, or even leaves it ajar and removes nothing, that must be reported to the licensing board as an information breach. We actually had a case which that occurred in.

I want to share some real-life cases with you that we have experienced with respect to documentation issues. Here we have a healthcare worker who was caught between a divorcing couple and sued for records disclosure. Instead of settling for the $1 million demanded by the plaintiff’s lawyer, we defended the healthcare worker all the way up to the North Carolina Supreme Court and we won the case. It cost The Risk Retention Group $175,000 in legal defense fees, compared to a policy premium that was annually paid of $225, but we protected the healthcare worker nevertheless. We also, and more importantly, created case law for all healthcare workers nationally across the country in favor of practitioners and their rights to client documentation control.

We had another case with respect to protecting client records and documenting them. We’ll call our insured Mr. X, and he had a patient, Mr. Y, who was deceased. Mr. X’s documentation was substandard to the level that he could not read his own writing during a deposition. This deposition was so unsatisfactory that the neuropsychologist was called in by the defense counsel to show that this deposition evidenced mental incompetence was canceled from the court record. Mr. X has dementia and has since retired. Improper release of patient records case, another pointer is not to release patient records just because you’re ordered to by a subpoena or your supervisor directs you to.

Our insured, Ms. L, as an independent contractor followed the directive of her supervisor to release certain patient records in connection with a workers compensation case. This was an unauthorized release. The result was a lawsuit that has been advancing for 24 months and legal fees of over $16,000 just to defend our insured. The indemnity may very well be in the $40,000 range.

We have another case with respect to a pastor who sued for improper records release. The Risk Retention Group insured Ms. Y, the healthcare worker, who released patient records regarding employment prematurely. These records involved a pastor who was an embezzler and now cannot find a job and is looking for money. It’s clear that he’s looking for money and hired a lawyer to file suit and demand a settlement in what we call a “gotcha” case. In this case, the court mandated a settlement and appointed a mediator, so The Risk Retention Group was precluded from testing the lawsuit in court and the validity of the actual damages required to prove negligence. This is an example of a litigious society using the law for money-getting. Thus far, $16,000 has been paid by The Risk Retention Group in legal defense fees, and there will be a settlement beyond that.

I direct your attention to the tip of the month entitled Documentation Pointers to Avoid Liability and Malpractice, which is published on the insurance service’s website in March of 2016. Medical records requests and breach of confidentiality, again, are the leading claims incidents for healthcare workers. Always document and date the time of the case, along with the care provided. Always anticipate that a plaintiff’s lawyer will subpoena your records. Always document the next steps and follow up proactive plan, even if sessions are terminated. Detail referrals as well.

If you have a third party handling your digital or paper records in any way, make sure that you buy some form of cyber liability policy to protect you from third party information breaches. Most often, professional liability policies do not cover liability from third party breaches. 45 CFR part 160 HIPAA HITECH law was passed by Congress in 2013. That holds healthcare workers accountable both criminally and civilly with hefty penalties if they allow a third party, like a mover of their paper client files or a digital warehouse provider, to lose or to breach the client information.
Final pointers. Document your final thoughts at each session.

Your conclusions must be documented at each session, including actions to pursue and proactive treatment. If you forget and/or 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 that edit, date it, and also include the time of day. Also, indicate that the edit or the addition is a late entry that you made. By doing this, you will not be open to accusations of making any false statement records after the fact. Falsifying records will result in loss of license and malpractice complaints being filed against you. Criminal charges could also be filed against you for that.

In summary, 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. Thank you for listening, and that concludes our podcast today.

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Preferra Insurance Company RRG, formerly NASW Risk Retention Group (NASW RRG) shares information based on our helpline inquiries, corresponding claims history, and an understanding of a varying nationwide professional state regulatory environment.

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