Are your records protected?

About the Author
Eric C. Marine is Vice President of Claims for the American Professional Agency, Inc. and a frequent writer on topics or risk management in the mental health field. O. Brandt Caudill, Esquire is a prominent defense attorney with the firm of Callahan, McCune and Willis in southern California. He attended the “Ramona” trial as an observer. Mr. Caudill has published numerous articles on mental health care issues and the law. Sylvan Schaffer, J.D., Ph.D. is both a practicing psychologist and a lawyer in the greater New York City area. He serves as Legal Counsel for the New York State Psychological Association and has written extensively on risk management topics.

The local fire department successfully evacuated the professional office plaza with any injuries. However, the combination of fire, smoke and water destroyed the buildings and their contents. It was several days later when Janet Brooks, Director of the Family Counseling Center, was completing insurance claim forms and realized that the Center’s patient records were lost in the fire. RECORDS…the only physical evidence she possessed about patients she had seen in her last ten years of practice. RECORDS…her primary defense of her good professional name in the event of an ethics, licensing board or malpractice action. RECORDS…her proof that she acted within the standard of care for her profession. While this scenario is a rather dramatic example, the importance of records in operating a good professional practice cannot be stressed strongly enough. Since mental health care has a long maturation process for claims (sometimes ten, fifteen, or twenty years after treatment is terminated), maintaining your records becomes your primary risk management strategy. There is still some disagreement over the necessity of formulation and retention of records. There is no agreement on the actual role played by these notes. However, in the defense of a malpractice claim, your records are invaluable.

Records should be considered as evidence that can exonerate you if they exist and are in good order. You must take the responsibility of maintaining and preserving your records seriously. Records can be a nuisance. As your career progresses, they may become more unwieldy and you want to have some method of disposing of them. A word to the wise, DON’T.

  • 1. Maintain an unbroken chain of custody. Always know where your records are and who is responsible for them. Remember, that you are responsible for producing your records and failure to do so reflects poorly on you in malpractice litigation. 
  • 2. Make sure your records are in good order and follow the sequence of treatment. The plaintiff’s attorney will be analyzing your records to ascertain if you deviate from the standard of care. Poor record keeping can be an indicator of substandard practice.
  • 3. Make sure your records are legible and cogent. The tendency for cryptic and erratic note hand is too easily left open to interpretation. 
  • 4. Make sure your records are stored in a safe place. While it is unreasonable to expect you to protect your records form all types of natural disasters, fire proof file cabinets are recommended. 
  • 5. Never change your records without acknowledging it. Obviously there are times when you change your diagnosis and/or treatment plan as therapy progresses. However, such changes should be separate entries in your records. If you go back and make changes, clearly indicate you are making an addendum, date it and sign it. 
  • 6. Investigate the use of different media, such as microfiche or scanning onto a CD-Rom, to preserve your records. Courts accept records preserved in formats other than on paper. New technologies are providing efficient and cost-effective alternatives to maintaining paper files. The cost of transferring records to differ media may outweigh the cost of long term storage for paper media. 
  • 7. Keep current with any standards or guidelines on record keeping promulgated by professional associations. Even if you do not belong to a national professional association, it is important to know what standards for record keeping are in place for your profession. In the event of malpractice litigation, the plaintiff’s attorney may argue that the guidelines or standards promulgated by the national association are the standard of care as it applies to records. 
  • Disclaimer: The information provided in this scenario is a composite of actual claims. However, identifying names, locations, and circumstances have been masked to assure confidentiality. The Importance of Records in Malpractice Litigation By Eric C. Marine The jury had been in deliberations for two days on the matter of Doe v. Smith. Mary Doe had claimed that Dr. Smith initiated sexual misconduct in the course of therapy. Dr. Smith had steadfastly denied these claims. One juror, Joe Brown, summarized the frustration the jury felt in deciding the case. “Dr. Smith seems like a competent and caring psychologist, but he admits that his records on Mary Doe’s treatment are not entirely complete. Mary Doe’s journal on her treatment mentions several contacts with Dr. Smith that he acknowledges, but not included in his records. I’m having a hard time deciding who is telling the truth in this case.” Unlike the criminal justice system, the civil system does not need to prove anything “beyond a reasonable doubt”. Cases based on circumstantial and hearsay are allowed to proceed and can be won by the accuser in the absence of records. Remember that a preponderance of the evidence is all that is needed to be establishing by the jury, which is composed of lay persons not particularly familiar with the practice of psychology. Expert witnesses will be used by both sides to establish the efficacy of the treatment in question. 
  • What does the absence of records mean? Look at it from the standpoint of a potential juror. We all have opinions about how professionals should conduct themselves. Granted, our opinions may be shaped by television and other media, but everyone has an opinion on how a professional should behave. Most jurors can and do expect that health care professionals maintain records of treatment. Most jurors expect the records to support the course of treatment and show an eventual outcome. When records are missing, jurors not only question the professional’s ability, but also the professional’s ethics. The absence of records suggests that there is something to hide. The plaintiff’s attorney certainly will make this suggestion to a jury. Furthermore, expert witnesses may not be available to the defense if treatment records are bad or do not exist. The result is that the defendant is likely to lose the case. A special point should be made for situations where the patient has been known to keep a journal. While the journal may be filled with fiction, it will be portrayed as being completely truthful by the plaintiff’s attorney. Compare the completeness and detail of the patient’s journal to your own case records. If your records do not exist or are in cursory form, imagine the impression of your testimony on the jury. You will be rebutting the written word with only your word. You’ll be asking the jury to believe you. While you may be completely truthful, out society is conditioned to be skeptical. The jury will wonder why you, the health care professional, does not have adequate written records for your treatment. The following risk management suggestions can help assure that your records are complete: 
  • 1. Use carbon message pads. These pads will provide permanent records of all phone messages, including the date and time received. Such records will remove questions about attempts at communication. 
  • 2. Maintain a log of any outgoing telephone messages. Always note any communication with the patient. This practice removes any question of content and indicates the simple fact that the call was returned. 
  • 3. Develop a comprehensive treatment plan. The plan should contain issues to be worked on, approximate time frames for treatment, and expected outcomes. Consult with your state or national professional association for guidelines on treatment plans and records. 
  • 4. Make a formal diagnosis and maintain it. If you later change your diagnosis, note the change and your reasons for changing it. Your diagnosis can be reviewed by expert witnesses supporting your position. 
  • 5. Write your records when the events are fresh in your mind. Do not delay updating your records for weeks or months. 
  • 6. Be sure your records are legible and cogent. Be sure they are kept in good order and kept in a secure place. Whatever form you choose to maintain your records, above all, remember they are the only documents that exist which support your professional position. If your records are questionable or do not exist, your reputation and career are in serious jeopardy. 
  • Disclaimer: The information provided in this scenario are a composite of actual claims. However, identifying names, locations and circumstances have been masked to assure confidentiality. This is a Recording By Eric C. Marine Dr. Rivers was concerned about the explosion of professional malpractice litigation. She had read the myriad of articles on the strategies for reducing the chances of litigation. She was able to discern the recurrent theme that food therapy records were paramount in the defense of claims. Dr. Rivers took good notes. She filled out the treatment plans required the by the managed care companies which included her on their provider panels. She consistently reviewed her patients’ diagnoses. All in all, her record keeping was exemplary. Still, even good did not make Dr. Rivers feel safe. She knew that everything that happened in a therapy session was not being memorialized in her notes. These gaps were troubling to Dr. Rivers. She finally decided to remedy the situation by audio taping her sessions. Since the audio tapes were for her own personal use, she decided not to disclose to her patients that she was taping their session. She set up a tape recorder in her desk drawer and hid the microphone so that it would pick up any conversation but not be visible. Dr. Rivers was conscientious in her use of the taping system. She labeled each tape and stored them in a secure place. No one knew she was recording each session. This made Dr. Rivers feel more secure. She finally felt that no allegations of malpractice could be proven as she had the definitive evidence of what had occurred in each session. 
  • One day Dr. Rivers was called out of a therapy session. She left the patient alone in her office. The patient decided to look around the room. While doing so, the patient discovered the microphone. The patient was angered and felt betrayed at this discovery. When Dr. Rivers returned to the room, the patient confronted her with the knowledge of the taping equipment. Try as she might, Dr. Rivers could not salvage the situation. The patient left the session and never returned. Soon thereafter, Dr. Rivers was notified that she was being investigated for ethical violations. She was surprised when the association’s ethics committee was critical of her practice. The therapist in this scenario was rightfully concerned over the increase in litigation against mental health professionals. Her response was to preserve all evidence that was available to her. What she did was legal. If a lawsuit was filed, the tapes could have provided valuable assistance to her defense attorney. However, the failure to disclose the routine taping of sessions may have destroyed any benefit of the therapy being provided and, therefore, potentially harmed the patient. There are two sides to the issue of taping sessions. First, there is the desire to protect yourself from unfounded allegations of providing bad therapy. Second, there is need not to harm the patient while providing the therapy. If you are planning to record any of your sessions, it is important to take the following steps. 
  • 1. Disclose the existence of the taping equipment to the patient. 
  • 2. Ask permission of the patient to record the sessions. 
  • 3. Have the patient sign an consent form allowing the taping and place it in the patient’s file. 
  • 4. Label and store each tape. DO NOT ALTER THEM IN ANY WAY. 
  • 5. Do not store tapes near a magnetic device 
  • 6. Be sure that the tapes of the therapy sessions are a different size than the tapes you would normally use for dictation. There is no law that prohibits the recording of conversations, as long as one of the parties is aware of the recording and gives permission. 
  • In this scenario, Dr. Rivers was aware of the taping. However, the taping of telephone conversations requires that all parties be aware of and consent to the taping unless a court orders otherwise. Finally, taping therapy session poses some practical problems. The cost of good recording equipment is high and a constant supply of tape will be needed. Proper storage of tape can become cumbersome and expensive as the number of taped sessions grow. If you are considering taping your sessions, consider the practical problems and costs against the benefits of having a more “complete” record that written notes. Disclaimer: The information provided in this scenario is a composite of actual claims. However, identifying names, locations, and circumstances have been masked to assure confidentiality.