Medical Records as a Defense to your License to Practice Your Profession

Steven L. Simas, Esq.

Steven L. Simas Experience

Simas & Associates, Ltd. –2002 to present Deputy Attorney General, Office of the Attorney General California Academy of Attorneys for Health Care Professionals Legal Counsel, California Physical Therapy Association Legal Counsel, California Registered Veterinary Technician Association

Practice Areas Health Care Law Professional Licensing and Regulation Civil Litigation and Appeals Employment Law and Workplace Regulation

Medical Board and Other Agencies’ Expectations for Recordkeeping

Part I:

Medical Board’s Standards for Medical Recordkeeping

Medical Practice Act –Business & Professions Code §2266 provides: The failure of a physician and surgeon to maintain adequate

and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.

What is “adequate and accurate”?

Depends upon clinical circumstances

Matter of expert opinion

Medical Board’s Standards for Medical Recordkeeping A Comprehensive Patient Record Contains:Patient’s condition and treatment Any consultation informing the patient of his or her conditionDiscussion of intended procedures, risks, hazards, and alternative therapyAny instructions given to a patient by telephone

Medical Board’s Standards for Medical Recordkeeping Any cautions regarding prescription drugs that may

interfere with a patient’s occupation or driving safely Special note should be made of any allergies or

sensitivities Surgical records which are comprehensive and

promptly dictated or written. The anesthetist should record both pre- and post-operative information.

Medical Board’s Standards for Medical Recordkeeping Instructions to patients on follow-up care. Pathology and X-ray reports. The justification for treatment.

Source: Guide to the Laws of Practicing Medicine by Physicians and Surgeons, Sixth Edition, 2010, Medical Board of California (http://www.mbc.ca.gov/publications/laws_guide.pdf)

Contrast: The Physical Therapy Board’s Standards for Recordkeeping Unlike the Medical Board, this is governed

by Physical Therapy Board Regulation: Title 16, Cal. Code Regs. § 1398.13 provides that a

physical therapist shall document and sign specific things in the patient record.

Like the Medical Board, failure to do so can be “unprofessional conduct.” (Bus. & Prof. Code § 2660(i)).

Contrast: The Physical Therapy Board’s Standards for Recordkeeping Board Regulation 1398.13 requires the following to be

documented in the record:(1) Examination and re-examination (2) Evaluation and reevaluation (3) Diagnosis (4) Prognosis and intervention (5) Treatment plan and modification of the plan of care (6) Each treatment provided by the physical therapist or a

physical therapy aide (7) Discharge Summary

Contrast: The Physical Therapy Board’s Standards for Recordkeeping Contrast with Medical Board record

requirements: PT Board does not rely upon standard of care

Very specific requirements

Does not rely upon “expert testimony” to determine violation

More objective?

More nitpicky

Medical Board’s Standards for Medical Recordkeeping

Lessons and Final Thoughts What is a “complete” or legal medical record depends upon

the profession of the health care provider

Proper records can be the subject of an expert opinion

Some licensing boards have very specific requirements

Failure to keep proper records is “unprofessional conduct” for most licensed health care providers

How Licensing agencies build cases upon medical records

Part II:

How Licensing Agencies Build Cases Upon Medical Records

After a licensing board receives a formal complaint or has other reason to investigate, it has the following tools to do so: Subpoenas Release from complaining party Interviews Hospital records

How Licensing Agencies Build Cases Upon Medical Records Subpoenas: Under the Administrative Procedure Act (Govt. Code § 11180), the

head of each department may issue a subpoena to investigate:

All matters relating to the business activities and subjects of the department's jurisdiction;

The violation of any law or any rule or order of the department; and

Any other matter that some rule of law authorizes the department to investigate.

How Licensing Agencies Build Cases Upon Medical Records Other methods of licensing Boards obtaining records:

Release from complaining party or patient (often without licensee’s knowledge)

805 Reports/Peer review reports Reports of Settlement Hospital records

Accusations and Citations For Improper Recordkeeping

Part III:

Accusations and Citations For Improper Recordkeeping Licensing Board actions against health care professionals

Accusations Citations

Recordkeeping violations (grounds for license discipline) Failure to keep “adequate” records Failure to keep records Failure to document treatment in the records Failure to document things required by Board (e.g. discharge

summary for PT Board)

Accusations and Citations For Improper Recordkeeping How recordkeeping problems manifest in a

licensing hearing: The Golden Rule : “If it is not in the record, it did not

happen”Difficult patientReferralsHistory & PhysicalPrescribing casesPain management

Medical records and use of experts in licensing defense cases

Accusations and Citations For Improper Recordkeeping

If the licensee met the standard of care, it must be in the record

Defensive recordkeeping

Can be the difference between a finding of negligence or not

Accusations and Citations For Improper Recordkeeping Medical records and use of experts in licensing

defense cases Medical records are the tool of the expert

witnesses Board experts look first at medical records Medical records can cause license discipline or

other issues even if care was proper

Accusations and Citations For Improper Recordkeeping Examples

Veterinary Board overnight hospitalization case

Overnight monitoring not in record

Veterinarian provided uncontroverted testimony

ALJ found “no overnight monitoring”

Vision insurance audit

All information regarding charges was in record

Auditors could not find it

Finding “optometrist sent in incorrect and unjustified charges”

Medical Board LASIK case

Informed consent records

“Eval” versus “Reeval” in cataract case

Steven L. Simas, Esq.SIMAS & ASSOCIATES, Ltd.

Government & Administrative LawSacramento -916.789.9800

San Luis Obispo -805.547.9300

www.simasgovlaw.com