On this week’s episode, Dr. MedLaw offers guidance on savvy documenting practices that can help clinicians avoid legal trouble.

Hi, this is Dr. MedLaw. For those who haven’t met me yet, I am a radiologist and a medical malpractice attorney.

Today, we’re going to talk about medicolegally savvy documenting. Medical schools and residencies don’t teach documenting past a basic SOAP note, and now EMR has entered the field and turned charting into clicks on a dropdown menu. EMR is also undercutting documenting as a skill.

Meanwhile, what are you told every time you take a course in avoiding malpractice? “Document everything,” which can backfire badly unless you document the right way. That’s what we’re going to be talking about.

Documenting meaningfully is not an option. What I say whenever I lecture on this is, “what you don’t say in your own words now, some lawyer (like me) will eventually be saying in theirs.” Documentation is therefore Goldilocks-rule territory. There can be too much or too little, but then there’s the amount that’s just right. However, unlike Goldilocks scenarios, which relate to something external, there’s no note until you write one. Finding the balance is on you.

Before we start the discussion, though, let’s make a distinction. This is not going to be about the operational documentation issues that underpin about 20% of malpractice cases. Those are problems like legibility, incorrect transcription, inaccurate or incomplete data, or using abbreviations in a misleading way, or an error in cloning by copy and paste. We’re actually going to talk about that in our next episode, where we talk about EMR. These are all critical matters, but they stand on their own as discrete mistakes.

Here, we’re going to be talking about the substantive sense of the note and how to make that more effective in a situation where you need that note as a defense. Let’s start with the fact that a chart note is written for three readers:

The first is future you. The note must be complete enough as to the facts and your thinking at the time to refresh your own memory, either in a subsequent clinical moment or years later in a lawsuit, board complaint, or peer review, when you need to reconstruct the facts in your own defense.

The second is a co-treater, carrying out their own work on your shared patient. They have to know why you think what you think and why you’re doing what you’re doing.

The third is someone deciding if you acted wrongfully. It might be a plaintiff’s attorney, board investigator, or peer review committee deciding whether they should start or continue a case against you. It might be a claims adjuster at your malpractice insurer determining whether it’s better for the company to fight or settle. It might be a defense attorney working out what they think is their best strategy. It might be a juror, board member, or peer reviewer ultimately deciding whether you met the standard of care in these settings.

The note has a particularly powerful role because the medical record, which is maintained contemporaneously and in the ordinary course of business, is an exception to the hearsay rule: even though it is an out-of-court statement, it can come into evidence as proof that what it says is true. A single note must work for all those purposes.

I realize that’s going to sound very daunting—until you consider that a note that works for the first and second readers (you and those treating the patient with you) will work for any reader in a situation where you are being judged. If you hit the clinically relevant points clearly, you will have communicated fully to your future self, to other treaters, and to anyone evaluating you later.

The problem is that when doctors know things have hit the fan or suspect they might, the human impulse shifts from informing to self-protection. What’s the result? A long narrative of self-justification. The doctor will thereby actually have created something that stands out from the rest of the record like a very sore thumb. Basically, they’ve told a future evaluator exactly where to drill.

What you want to do is to document without editorializing. If a point would not be made in an ordinary note that you wrote when you were not concerned, then it doesn’t belong in a note that you’re writing when you are stressed.

Now, you may be asking yourself, “Hey, who are you and what have you done with Dr. MedLaw? You’re always talking about speaking notes to lay out how I considered issues and implemented them in treatment, and now you seem to be saying that a bare note is a good note.”

Well, the answer to that apparent dichotomy is, yeah. That’s because it’s only an apparent dichotomy. A speaking note is not a defensive dissertation. Essentially, it says, this is the data and this is why I used it as I did. It’s grounded in the clinical moment.

The type of note that we’re talking about here is that note, however well written, that will prevent you from being named in a lawsuit or a complaint if you actually have a presumptive place in the sequence of events. A note that doesn’t put you center stage by being elaborate and defensive will actually favor an understanding of your role in a way that you want it to be understood.

Then there is the flip side of self-defense, and that’s finger-pointing—notes that strain to affix blame elsewhere, other than you. These are also flashing lights for an evaluator. This is inherently problematic because if you really feel that it’s a blame situation, then it’s a situation in which you actually had a significant role, so the blame should tied to you showing what you did or were blocked from doing to counteract the poor conduct of that other person or facility.

A note about how a patient continually failed to take their medication or refused your best medical advice is not a defense if you just ended up passively presiding over that non-compliance. The fact that another physician gave poor care to your patient is also no defense if you were aware of it but didn’t at least contact that doctor about the matter, attempt to work around it, or suggest to your patient that they get a second opinion.

To explain this, let me talk about a friend’s case in which the ICU staff were originally planned to be listed as defendants in a case about a delay in care but were not named because their notes showed they did what they could, within the reality that they were in a different department, to try to counter a surgeon who was recalcitrant and refusing to operate despite a patient’s decline. They showed that they made their best efforts, and that made them witnesses but not defendants.

The next thing to remember is that when you do say something negative about a patient or a colleague, you need to keep it professional. Bear in mind that you’re only writing the note because you’re anticipating that it may help you someday, and sounding antagonistic, particularly about a patient, will never do that. However, using specific statements by the patient or practitioner, in quotes, can be very useful in bridging this, because it converts what could come across as inflammatory into, “Hey, I’m just reciting a fact.” This was also an important feature in the case I just mentioned because the ICU staff wrote down exactly, in quotes, what the surgeon told them when he refused to operate.

Documenting negative points about another physician or staff member should also be done with care because you don’t want to make yourself adverse to a party you depend on for your own defense, like your hospital or practice group. When you write an overtly condemnatory note that implicates them, even vicariously, you make their defense based on discrediting. Instead, stick to a narrative of the clinical points and let the other doctors’ inadequate acts stand out in those.

If you think about it, this section of our discussion is very much like the discussion we had about limiting your statements when responding to an unfounded patient complaint online. When you’re upset, that’s the time to consciously constrain what you say.

The point that we just looked at was about documenting in advance or in response when you’re sure that you’re in the right. Now, let’s talk about what you should do if you know you were wrong and you want to mitigate the problems you’re likely to face.

In this case, if the matter is obviously serious and has the potential for litigation or a board complaint or peer review, contact your insurance carrier first. Most policies require you to inform the company before you take any action so they can take the reins. They will reserve the right to disavow coverage if you don’t do so. If you’re in an employed position, there might be a similar requirement in your contract or bylaws to contact administration or the legal department first.

However, if you’re acting on your own, the best approach while the matter has not worsened is to acknowledge the issue, but to phrase it closely and avoid language that comes across as a clinical surprise on your part. Instead, use something like “Subsequent to the last visit/clinical event…” to introduce material that you’ve just become aware of, but that has a significant impact. Never phrase as “would’ve, could’ve, should’ve.” If subsequent care requires reference to your lapse, make it conditional such as saying, “Based on this additional information, the current findings may have reflected [this condition].” Most critically, do not launch into a defense of your prior conduct because that’s the conduct that you know fell short.

The most essential reason to stay narrow is that the situation may ripen into a lawsuit, and you do not want to tie your eventual advocate’s hands in advance. You can’t prevent a lapse from being noticed, but you can avoid boxing in your own lawyer on how to present the situation later.

Finally, don’t even think of going back to change the preexisting record to undo or try to minimize the error. That’s both a criminal act—it’s at least a misdemeanor, and in some jurisdictions, it’s a felony—and it’s a civil liability noose. It will destroy your credibility with any trier of fact and give your insurer the excuse to kick you to the curb. And it won’t work anyway. Lawyers and investigators have seen every possible, “oh, I’m so clever” gambit to alter a paper record, and they’re never fooled. Now, digital records have tracking functions that show who entered the record and when, and that mark edited postings as such. You’ll definitely leave footprints.

What you should do instead, if new material comes up or you want to alter a past statement that you made, put in an addendum, title it as such, and write that addendum without editorializing.

In summary, always keep in mind that your notes are the first time an evaluator of a problem situation will meet you. Your notes are your chance to make a first impression that will carry through the rest of the assessment process. If you document professionally, you’ll represent yourself well and set the stage most favorably for what will follow.

Thanks for the chance to talk to you about this important topic.

Thanks for listening. Stay tuned for next week’s episode. To hear more, follow PeerPOV: The Pulse on Medicine on Apple Podcasts, Spotify, or Amazon Music.

This transcript has been edited for readability.