Steven L. Simas, Esq.

Steven L. Simas Experience

Simas & Associates, Ltd. –2002 to presentDeputy Attorney General, Office of the Attorney

GeneralVice President, California Academy of Attorneys for

Health Care ProfessionalsLegal Counsel, California Physical Therapy

Association Practice Areas

Health Care LawProfessional Licensing and RegulationCivil Litigation and AppealsEmployment Law and Workplace Regulation

Part I:

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

Contrast with Medical Board record requirements:PT Board does not rely upon standard of

careVery specific requirementsDoes not rely upon “expert testimony” to

determine violationMore objective?More nitpicky

Lessons and Final ThoughtsWhat 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

Part II:

How Licensing Agencies Build Cases How Licensing Agencies Build Cases Upon Medical Records 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:SubpoenasRelease from complaining party InterviewsHospital records

How Licensing agencies build cases How Licensing agencies build cases upon medical records 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 How Licensing agencies build cases upon medical records 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 reportsReports of Settlement Hospital records

Part III:

Accusations and Citations For Improper Accusations and Citations For Improper RecordkeepingRecordkeeping Licensing Board actions against health care

professionalsAccusationsCitations

Recordkeeping violations (grounds for license discipline)Failure to keep “adequate” recordsFailure to keep recordsFailure to document treatment in the recordsFailure to document things required by Board

(e.g. discharge summary for PT Board)

Accusations and Citations For Improper Accusations and Citations For Improper RecordkeepingRecordkeeping

How recordkeeping problems manifest in a licensing hearing:The Golden Rule : “If it is not in the

record, it did not happen”○ Difficult patient○ Referrals○ History & Physical○ Prescribing cases○ Pain management

Accusations and Citations For Improper Accusations and Citations For Improper RecordkeepingRecordkeeping

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 Accusations and Citations For Improper RecordkeepingRecordkeeping

Medical records and use of experts in licensing defense casesMedical records are the tool of the expert

witnessesBoard experts look first at medical

recordsMedical records can cause license

discipline or other issues even if care was proper

Accusations and Citations For Improper Accusations and Citations For Improper RecordkeepingRecordkeeping

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 Law

Sacramento -916.789.9800 San Luis Obispo -805.547.9300

www.simasgovlaw.com