Health Law Monitor

Reminder for Health Care Providers: Communicate and Document to Help Avoid Litigation

May 27, 2020

As we begin to “reopen” following the initial assault from COVID-19, health care providers continue to adjust to the “new normal” of practicing medicine during an ongoing pandemic. Amid discussions of personal protective equipment, installation of plexiglass waiting room enclosures and increased testing availability, it is important to remember some basics to help avoid litigation. For health care providers, COVID-19 has not really “changed” the rules . . . it has added another chapter to an already an already hefty rule book.

Although there is no foolproof way to avoid litigation, experience suggests that effective communication and appropriate documentation are two of the best ways for healthcare providers to protect themselves from landing in the courtroom. During COVID-19 pandemic it is increasingly important to focus on communication and documentation skills.

Communication with patients and patient families is still the best way to protect against litigation. Patient surveys have consistently shown that the detail and delivery of information during a physician/patient interaction greatly impacts the level of trust and comfort felt by the patient. It is important to provide sufficient detail about care while using language the patient can understand, especially when delivering unexpected or distressing information. Health care providers are encouraged to give adequate informed consent within the standard of care, but that is only the beginning. Health care providers must speak with, not to, the patient and must allow sufficient time for questions and additional explanations if necessary. In addition, many patients will present with even greater anxiety during the COVID-19 pandemic which will require even more clear and empathetic communication.

Some steps to appropriate patient communication include:

Honesty regarding the patient condition and course,
Use of appropriate language that the patient can easily understand,
Including the patient’s family in the discussion with the patient’s consent,
Providing a complete informed consent to any procedures or treatment regimen,
Allowing sufficient time for questions and concerns to be expressed, and
Giving undivided, non-distracted attention to the conversation.

Once the treatment is initiated or the diagnostic course is undertaken, the health care provider must also adequately document thoughts and interactions. The medical record is usually the only contemporaneous document available to explain what was done, when it was done and why it was done. Thoughtful documentation of medical care can also help avoid litigation if it adequately describes that the standard of care was complied with by the health care provider. Even if the patient is unhappy with the care provided and consults with an attorney, a lawsuit may be avoided if the events are clearly and appropriately documented. If a suit is filed, clear and complete documentation can be the best defense to the allegations. The defense of the case should ideally be based on proving that the standard of care was met using clear and adequate documentation.

Most health care providers have been forced to add several layers of additional documentation as a result of the pandemic. New consent forms, additional vital sign readings, and added lab reports must be made a part of the EMR or paper record. It is important to remember the key elements of good documentation before, during and after this pandemic:

Document truthfully, clearly and factually,
Take the time to chart immediately following the care provided,
Include a record of all diagnostic information available and when it was considered,
Proofread and confirm accuracy before completing or signing, and
Record all facts and findings necessary to provide treatment.

It is true that the actual care patients receive is more important than the communication and documentation about that care. Health care provider liability is grounded in the idea that one must comply with the accepted standard of care above all else. However, patients will better understand their care with the use of appropriate communication, and others reviewing the chart will know the standard of care was met by ensuring appropriate documentation. As we learn to navigate the new challenges presented by COVID-19 and other novel medical issues, complying with these basic principles can keep health care providers out of the courtroom and in the health care setting where they belong.

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Shapiro RS, Simpson DE, Lawrence SL, Talsky AM, Sobocinski KA, Schiedermayer DL. "A Survey of Sued and Nonsued Physicians and Suing Patients." Arch Intern Med. 1989;149(10):2190–2196. doi:10.1001/archinte.1989.00390100028008

Hickson GB, Clayton EW, Githens PB, Sloan FA. "Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries." JAMA. 1992;267(10):1359–1363. doi:10.1001/jama.1992.03480100065032

Carroll, A. (2015, June 1). "To be sued less, doctors should consider talking to patients more." The New York Times. Retrieved from http://www.nytimes.com

Attorneys

Robby J. Aliff