Documentation and Billing Medicine And The Law Documentation and Billing Timothy Savage, J.D. Area Claims Manager August 20, 2019

Documentation Is Key Why timely and accurate documentation is critical: Other providers may rely on your notes to make informed decisions about patient care Patient safety may be compromised by poor documentation Poor documentation may make an otherwise defensible case indefensible

Documentation Helps Tell The Story The medical record tells the story of the patient’s history and care to date When important information is missing or inaccurate, the story will be incomplete or wrong “If it’s not documented, it didn’t happen”

Providers Rely Upon One Another’s Notes When the patient’s story is incomplete or inaccurate, another provider may not fully understand the clinical picture Provider decisions that are based upon incomplete or inaccurate information are not fully informed, impacting patient safety

Documentation Can Sink A Case Bad outcomes – even where the care is appropriate – increase the likelihood the providers will be sued In a case where the care is appropriate but the documentation is poor or inaccurate, a jury may be more likely to conclude there was a deviation from the standard of care Once again, a defensible case can be made indefensible by poor documentation

Documentation Pitfalls: Late Entries If a provider is slow in documenting an encounter and the patient suffers a bad outcome, the provider may be tempted to write a "CYA" note after-the-fact Late entries that are excessively defensive in tone can doom a case Both experts and juries are skeptical of self- serving late entries that sound defensive

Documentation Pitfalls: Copy And Paste Copying and pasting information from another provider's notes risks adopting misleading information or false conclusions It is always better to document your own history than to simply copy and paste from another’s history, assuming it to be correct If you do copy someone else’s note, clearly state you got the information from the record, not from the patient

Documentation Pitfalls: Denying Knowledge Everything you do in a patient's chart is recorded in the background The same is true for calls and pages – their occurrence is logged If you view test results, open another provider's note, receive a page, etc., this information is likely tracked and available as part of an audit trail, a call log, etc. Audit trails and call logs never lie

Documentation Pitfalls: Altering Records While less common in the era of the EMR, altering medical records unfortunately still happens and is always a bad idea Correcting records is not the same as altering records If you need to make a correction to an existing record, know and follow your institution’s policy for correcting entries or adding an addendum

Documentation Pitfalls: Placing Blame Bad outcomes are a fact of life in medicine, and can occur despite appropriate care by the providers The patient’s medical record should not be used to place blame for the bad outcome, regardless of whether the target is in-house or at another facility Every institution should have a procedure in place for investigating bad outcomes in a way that protects both the investigation and its conclusions from disclosure

Documentation Pitfalls: Risk Management When in doubt about a patient outcome, you should contact your institution’s Risk Management/Patient Safety Department But do not document in the patient’s chart that you called Risk Management about the case Again, the medical record is not an appropriate forum to discuss investigations of patient care

Billing And Malpractice The plaintiff’s bar is finding increasingly creative ways to prosecute malpractice cases One of the areas ripe for attack could be the bills a provider submits to a plaintiff’s insurer The defense bar has long used billing information obtained from the plaintiff’s insurance carrier to identify providers the plaintiff failed to disclose in discovery

Billing Pitfalls: Upcoding Involves billing for a higher service than the one actually performed (e.g., billing for a fracture when the patient was really only treated for a sprain) Aside from the insurance fraud issue – which is significant – if there is later litigation because the patient actually had a fracture that was missed, the bill could be used to attack the doctor’s assessment of the patient and plan of care

Billing Pitfalls: Phantom Billing Involves billing for a service that was never performed (e.g., billing for a head CT in a patient with a head injury, but never actually ordering or performing the CT) Similar to the prior example, if the patient later suffers an injury that could have been prevented with a CT, a savvy plaintiff’s attorney could use the bill to prove the defendant physician knew a CT should have been done

Billing Pitfalls: Not Submitting A Bill When there is a bad outcome some providers may reflexively not submit any bill in the hopes that doing so will somehow help them avoid liability Except for very limited circumstances, not billing for a service does not insulate a provider from liability That being said, agreeing to waive a bill may prevent litigation in some situations

Billing Pitfalls: Write-Offs A patient’s bill may occasionally be written-off as a customer service or to avoid potential liability The decision whether to write-off a bill is typically made by Risk Management or another department If a patient asks about a write-off offer to put them in touch with Risk Management – don’t volunteer it In a hospital setting, write-offs are generally not in the purview of the physician

Billing Pitfalls: Medicare Patients Under the False Claims Act, 31 U.S.C. § 3729, every service provided to a Medicare patient must be billed to CMS Failure to comply with this requirement may lead to civil and criminal penalties, including loss of CMS billing privileges

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