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Nicole Irmer | Posted in Medical Malpractice on April 10, 2023
On an average day, a healthcare professional will see patients, catch up on the latest research, and spend time doing administrative tasks. In particular, doctors, dentists, nurses, and other healthcare workers find themselves spending a substantial amount of time doing charts. This can often seem burdensome, as well as a distraction from patient care.
Keeping accurate, thorough medical records may seem like a chore, but it is critical to any medical practice. Not only is medical documentation necessary to properly take care of your patients, but it is vital to protecting your license and your livelihood. Deficiencies in medical record-keeping can be disastrous in the event of an action by the Medical Board.
In California, medical records must contain a range of information related to the diagnosis, treatment, and care of patients. Healthcare workers must also carefully document the prescription and use of controlled substances pursuant to state and federal law.
Failure to maintain adequate and accurate records in accordance with the law may lead to probation or even revocation of your license. Licensing Boards adopt the position that “if it’s not in the chart, it did not happen.” However, with the assistance of an experienced San Diego healthcare license defense attorney, you may be able to resolve an investigation into medical record-keeping errors with a citation, fine, and/or corrective action.
Under California law, patient records include records in any form that are maintained by a health care provider related to the health history, diagnosis, or condition of a patient, or to the treatment provided or proposed to be provided to the patient. If a doctor fails to keep accurate, adequate records, it may be considered unprofessional conduct.
There are several categories of information that must be contained in a patient’s medical records. First, these records should contain information related to the patient’s condition and treatment, along with any explanation provided to the patient. At a minimum, records should contain:
But complete charting must also contain additional information relevant to patient care, including:
If a healthcare provider makes a technical error in these records, it should be corrected by drawing a line through the relevant section, writing a correction in the margin, and signing and dating the record. Erasing errors could lead to a charge of alteration of medical records, which may lead to both civil liability as well as disciplinary action.
Third, when prescribing controlled substances, medical records must be incredibly detailed. Both federal and state laws require manufacturers, wholesalers, pharmacies, hospitals, physicians, and dentists to maintain an inventory of all drugs that are ordered, purchased, distributed, or dispensed. Records of prescriptions for Schedule II controlled substances must be maintained for a period of three years.
There are a number of laws related to the retention of medical records depending on the specific situation (such as patients who are insured via Medi-Cal or whose care was paid out of the Emergency Medical Services Fund). Generally, medical records should be retained indefinitely for patients who are under active treatment. At a minimum, patient records should be maintained for at least seven years, but may be longer depending on additional factors.
Medical records are critical not only for patients, but for physicians as well. Maintaining detailed patient charts protects the doctor as well as the patient in a number of ways. An accurate, up-to-date chart may serve to:
There are many reasons why a physician may fail to maintain adequate and accurate records. Often, doctors report that they simply do not have enough time to chart in between patient visits.
Whatever the reason may be, it is important to understand that you can be held liable for inadequate or inaccurate record keeping. If a patient or another person or entity files a complaint with the Medical Board about the adequacy and accuracy of their medical records, it could result in disciplinary action. Additionally, if a complaint is filed, unrelated to record keeping, a physician may have a difficult time defending their care if the medical records are incomplete.
As noted above, a failure to maintain adequate and accurate records constitutes unprofessional conduct under California law. This complaint may result in serious consequences, including potential revocation of a medical license. If the complaint involves repeated acts with one patient, a public reprimand may be ordered in lieu of probation or revocation.
For doctors, there are several possible allegations with regards to failure to maintain adequate and accurate records. This includes a charge for failure to maintain records related to controlled substances and permit access to these records to the Medical Board or its designee; failure to maintain adequate records; and alteration of medical records. These issues may result in disciplinary action that may include:
In addition, a licensee may be required to take various courses on prescribing practices, medical recordkeeping, professionalism or to enroll in a clinical competence program. The Board may impose other conditions, such as monitoring-practice/billing, a prohibition on solo practice, and/or a prohibition of practice. For alteration of records, the Board may also impose a 60 day suspension.
Depending on the specific facts of your case, there may be an opportunity to resolve a complaint regarding medical record documentation before a formal Accusation is filed against you by the Medical Board of California, the Dental Board of California, the Board of Registered Nursing, or another healthcare professional licensing board. A skilled San Diego healthcare license defense attorney can develop a comprehensive strategy to defend your license and your livelihood.
As soon as you learn of an investigation or complaint against you for medical record errors, your first step should be to reach out to an experienced lawyer. An investigation by one of these boards or the California Department of Consumer Affairs (DCA) is a formal process that may result in disciplinary action and even criminal charges. You consult with legal counsel before speaking with an investigator or signing any documentation. Your attorney can perform a thorough investigation and put together a plan to resolve the matter in the most favorable way possible.
In certain situations, your licensing board may recommend corrective action instead of filing a formal Accusation against you if investigators determine that a minor violation of the law has occurred or that the complaint may be mediated. For medical record errors, you may be required to take a remedial course or a Continuing Medical Education (CME) on medical record keeping. You may also be issued an administrative citation and a fine.
The most critical time of the disciplinary process is the investigation stage which is confidential. At this point, your healthcare license defense attorney can advocate for you, presenting mitigating evidence to investigators and making an argument for corrective action rather than a formal Accusation and disciplinary action. Once an Accusation is filed, your matter becomes public and specific documents are uploaded to your Breeze profile. That is why it is so important to contact a lawyer immediately after learning about a complaint or investigation against you.
It is possible to defend against allegations of failure to maintain adequate and accurate records. Your attorney can put together evidence to demonstrate that you appropriately maintained records. They may be able to negotiate a stipulated settlement that results in a far more favorable outcome than you may have otherwise been able to achieve.
You may also choose to have your matter be heard in a hearing before an administrative law judge (ALJ) at the Office of Administrative Hearings (OAH). During the hearing, your attorney will present evidence, question witnesses, and make arguments. The ALJ will then render a decision, which will be reviewed by the Board before disciplinary action is imposed (or the Accusation is dismissed).
Importantly, a new law makes challenging these types of allegations more expensive for physicians. A recent update to the Business and Professions Code allows the Board to seek recovery of the costs associated with investigating and enforcing disciplinary actions. These costs may be sought as part of a stipulated settlement or imposed by the ALJ at the request of the Board. For many doctors, the potential to be ordered to pay the Board’s costs – including the expenses of the Office of the Attorney General – in addition to their own costs is daunting. Cost recovery is another factor that should be weighed in consultation with an experienced California healthcare license defense attorney before deciding how to proceed.
As a medical professional, you devote your days to providing the highest quality of care to your patients. Taking time out of a hectic workday to thoroughly document patient care may not seem necessary. Yet failure to accurately and adequately maintain patient medical records can result in disciplinary action against you. For physicians and surgeons, this may include cost recovery on top of sanctions such as suspension or even revocation of your license.
At the Law Office of Nicole Irmer, we have substantial experience representing doctors, dentists, nurses, and other healthcare professionals in all stages of the disciplinary process. We utilize our knowledge of the law and our negotiating skills to help our clients achieve the best possible outcome for their case. For a confidential discussion of your legal options with a compassionate San Diego healthcare license defense attorney, call us right away at (619) 237-6310 or email us at any time.