Columnists and Correspondents

Malpractice and Risk Management

Jeffrey E. Barnett, Psy.D.

Why document? Some would argue that it is an onerous burden that detracts from the more enjoyable aspects of independent practice. Others might be concerned that our records may be used against us in ethics or legal proceedings at some time in the future. Also, we don't want colleagues second-guessing our actions if they review our treatment notes. Finally, when responding to intrusive requests for patients' records by third parties, if we don't have lots of documentation, there's not much that can be released; a great way to protect patient privacy.

So why document? A number of important reasons exist:

Providing the best treatment possible. If I treat 30 or more patients each week with several of them being new patients with new histories and issues, it would be impossible for me to remember all their histories, what previously happened in treatment, issues I decided to follow-up on the last time we met, and all the other relevant clinical information, needed to provide good treatment. If I make observations of my patients' reactions to treatment interventions or have obtained important information from other sources will I remember it all and be able to integrate it into my case conceptualization and treatment plan?

What if a patient returns for treatment at a later date? Will I remember all the relevant information from treatment that was provided two months ago or two years ago?

What if a patient returns to treatment at a later date, but with a different practitioner? Being able to refer back to a comprehensive treatment record will be very helpful if the new practitioner requests information on the patient's prior treatment.

What if another practitioner provides me with coverage during a period of absence from my practice? Access to a well-documented treatment record will make the coverage provided more likely to be effective if difficulties or crises arise and must be responded to. Knowing about the patient's difficulties, previous crises and what responses were needed, effective, and ineffective, information about coping skills and resources, could all be of great value when responding to a patient's urgent needs.

What about for those who function as part of a treatment team? Wouldn't I need to know about any treatment provided to a patient by other team members and the patient's reactions or response? Couldn't this have an impact on how I might decide to proceed with a patient's treatment?

So, timely, relevant, and thorough documentation helps practitioners to provide effective treatment and helps to ensure the continuity of care provided when more than one practitioner is involved. Rather than view it as something that takes away from time spent treating patients, it will hopefully be seen as an important part of treatment that helps practitioners to provide patients with better care.

Risk management issues. Should an ethics complaint or malpractice suit ever be filed, how would a practitioner be able to refute any inappropriate claims or false statements about the treatment provided or interactions with the patient? Putting our faith in our word being accepted over the patient's seems risky at best. Instead, thorough documentation of all services provided and all actions taken along with the patient's responses and level of cooperation, alternatives considered, and the rationale behind decisions made and actions taken will serve us much better. As Bongar (1992) states, "In cases of malpractice, courts and juries often have been observed to operate on the simplistic principle that if it isn't written down, it didn't happen"
(p. 24).

It is also important to be aware that the treatment record is frequently used as an indicator of the practitioner's efforts to meet the standard of care of the profession. As Sovenko (1979) points out, "an inadequate record of itself is taken to be indicative of poor care" (p. 418). Good documentation also demonstrates one's decision-making process and good faith effort to act with the patient's best interests in mind (Gutheil, 1990). Practitioners can not guarantee specific results or ensure that all patients will benefit from treatment. In fact, at times adverse results may occur despite all our best efforts. In such situations, it will be adequacy of our documentation of the patient's treatment that will demonstrate if we have acted appropriately, thoughtfully, and in keeping with the profession's standards.

Meeting third party requirements. For those practitioners who accept third party payments for services provided to patients, inadequate or missing documentation may stand in the way of receiving compensation for services provided. Insurers often require the submission of treatment plans and written updates of the patient's treatment. Failure to contemporaneously document the services provided and their impact on the patient will result in difficulties when such requests are made, especially if they are received weeks or months after treatment was provided.

Meeting ethics requirements. Documentation of treatment provided is more than just a good idea; it is an ethical standard for our profession. The APA Ethics Code (1992) states: "Psychologists appropriately document their professional and scientific work in order to facilitate provision of services later by them or by other professionals, to ensure accountability, and to meet other requirements of institutions or the law (p.1602). Thus, failure to adequately document will be seen by others as an ethics violation and a clear sign on not meeting the profession's standards. If one doesn't meet this standard why would others believe that we are meeting others? Recommendations for the content of treatment records are provided in APA's Record Keeping Guidelines (1993).

It's the law. In many jurisdictions specific statutes require licensed health care professionals to document all treatment services provided. Such laws typically mandate keeping written records of all treatment, maintaining them for a specified period of time, restricting unauthorized access to these records, and releasing them upon lawful request.

So, timely, thorough, and adequate documentation will help practitioners to meet legal and ethical requirements, respond to third party requests for information, serve as an important risk management strategy, and perhaps most importantly, play an important role in assisting us to provide patients with the highest possible quality of care.

References

American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597-1611. American Psychological Association. (1993). Record keeping guidelines. American Psychologist, 48, 984-986.

Bongar, B. (1992). Effective risk management and the suicidal patient. Register Report, 18, 1, 3, 21, 22-25.

Guthiel, T.G. (1990). Argument for the defendant-expert opinion: Death in hindsight. In R.I. Simon (Ed.), Review of Clinical psychiatry and the Law (pp.335-359). Washington, DC: American Psychiatric Association.

Slovenko, R. (1979). On the need for record keeping in the practice of psychology. The Journal of Psychiatry and Law, 7, 399-440.