By Tom Glassman, Esq.

Imagine trying to remember, in intricate detail, something that happened nearly three years ago. Considering that most of us are hard-pressed to remember what we wore to work three days ago, the thought of having to remember that far back while being scrutinized by 12 jurors, a judge, and a relentless opposing attorney is even more frightening.

But in litigation, it may not be until several years after you last saw the patient that you will be in a position to finally tell your story. In many states, the statute of limitations for such claims is two years. By the time the lawsuit is filed and your testimony is needed, three years or more could have elapsed.

Over the course of three years, many things can happen that will limit your ability to recall your interaction with this particular patient. Perhaps certain employees who were actively involved with this patient no longer work for you. Perhaps events in your personal life have had you preoccupied to the point where it is difficult to think back very far. Perhaps at the time you saw this patient there was nothing remarkable or memorable about their condition or personality, and you have seen so many patients that you have little recollection of the person now accusing you. When circumstances like these present themselves, the quality of your patient chart is going to be your best line of defense. When a lawsuit is filed, the patient chart will be among the first items the plaintiff's attorney will request.

Ask yourself:

• What do my charts say about me and my employees and how we practice?
• How will a jury react to my charts, both to their content and overall appearance?
• Are my charts sufficiently detailed so that they will help me tell my story and defend my good name in front of a jury?

If you answer no, your practice may be in danger. Most civil cases, particularly professional liability cases, come down to "he-said, she-said" arguments. If your chart is not sufficiently documented, the jury has to decide whether to believe you or your patient. Avoid that subjective decision by obeying the following guidelines.

Taking patient history
The ultimate effectiveness of your chart begins with your initial patient history. A thorough and complete history can head off potential claims before they start. An inaccurate or incomplete history creates the potential that your care will not meet the patient's needs.

Taking a proper patient history requires two basic skills—the ability to ask the proper questions and the ability to listen. Whenever possible, the history should be taken by the orthotist or prosthetist. If taken by a staff member, the orthotist or prosthetist should still review and discuss the history with the patient before proceeding.

Think about the form and the process you use to take a history from a patient and consider whether they are designed to elicit all of the information you need. Ask yourself these questions:

Is this a form that you and your staff complete or is it something the patient completes and returns to you? Some patients and their families may not be able to provide you with all of the information you need when taking a history. Perhaps you have a patient who can fully understand and respond appropriately to oral questions but has difficulty reading and writing. What happens then?

Is there space on the form for patients to write how they are feeling and any particular concerns they have? Many patient history forms devote most of their space to insurance and payment information, with only a brief section focusing on the patient''s concerns and what actually brought them to the practice in the first place. Not only does this hinder your ability to take the best history possible, but think of how a jury will react when the patient's attorney attempts to portray you as a practitioner more focused on getting paid than finding out the patient's needs.

Does the patient history include information from the physician? Other than a scribbled prescription or referral form, what evidence is there of communication between the referring physician and your practice? Obviously the patient is at your practice because a physician felt he or she needed prosthetic or orthotic services, and thought highly enough of you to refer the patient to your practice. Any verbal communication between the physician and yourself needs to be documented in the chart. In addition to speaking with the physician, copies of the physician's records are invaluable.

Think about how damning it can be if you are on the witness stand and the other attorney asks, "Did you ever even bother trying to speak with Dr. Jones before selecting and fitting my client for this device that the doctor felt was absolutely medically necessary?"

Does the patient's age, mental health, or cognitive ability prevent them from being able to fully understand the questions and respond adequately? When a patient is not able to do so, you will need to involve a family member or other caregiver. This of course triggers a series of HIPPA issues, but you should have the proper forms available at your practice to secure the patient's consent to discuss his or her condition and treatment with others.

Regardless of who completes the history form, the patient (or caregiver) must be given the opportunity to review the form and be asked to sign off on its accuracy.

Does the form ask related health questions? A proper history encompasses not only the patient's medical history, but also key details of his or her lifestyle. What does the patient do for a living? What type of recreational or leisure activities is he or she involved in? What is the household living situation? What medications is he or she currently on?

Are critical details verified? When we go to the doctor, invariably we are not asked our weight. Instead, we actually get up onto the scale. When you take a patient history, do you measure them and weigh them in your office, or do you take them at their word?

The onus is on you and your staff to take proper steps to secure the needed information. A jury will realize that you are a professional, and will expect more from you than from your patient. If a crucial detail does not make its way into the patient's history, telling the jury "the patient should have told me that" is not going to get you very far.

Charting follow-up
Having a proper history in a patient's chart does not mean you never need to ask those questions again. Periodically you must follow up with the patient to see if there have been developments in their life or medical condition that affect your care.

On subsequent office visits you should always take the time to address any changes in the patient's health, even if it is not a condition directly related to the services you are providing. Have they had a recent surgery? Are they on any new medications? Are they off any medications they have previously been taking? Have there been changes in their job or daily activities?

Many claims against professionals stem from follow-up problems. Several years ago I defended an AOPA member in a suit brought by a patient. It was obvious the patient's problems came about because he did not follow the instructions given. After the initial fitting, the patient failed to return for the follow-up appointment, and did not contact the professional or return to his practice until he developed an ulcer on his foot.

However, there was nothing in the chart either about the follow-up appointment being made or it being missed. Only the practitioner's billing records revealed the missed appointment. The patient and his wife, both of whom had hearing problems, denied ever being made aware of any appointments. This whole situation could have been avoided had the practitioner provided reminder cards to his patients at the end of their visit, called the patient after the appointment was missed, and noted the follow-up visit in the chart.

Another practitioner maintained an excellent set of written resources to guide patients through their aftercare process. These guides went over the same information and instructions the patients were given orally, and were also an excellent resource for family members and caregivers. I complimented him on the quality of his resources, and asked what measures were taken to keep track of what information was given to which patient, and when. As it turns out, this was not tracked at all. It could have easily been done with a notation in the patient's chart.

Other considerations
If you already have a system in place where you take thorough and complete histories from patients, and track them from one appointment to the next, there are still several other points to consider before you start patting yourself on the back.

Quality of notes. How accurately do your notes reflect what transpired at office visits? At a minimum, your notes need to reflect several things. Did the patient have any concerns? What did you observe? What conclusions did you reach? Finally, what are the next steps in the care plan for this patient?

You may recall hearing some practitioners refer to SOAP notes. With SOAP notes, notations for particular office visits are broken down into four categories:

• Subjective: What did the patient report?
• Objective: What did the practitioner observe?
• Assessment: What conclusion was the practitioner able to reach?
• Plan: Based upon the conclusions gathered, what are the next steps in caring for the patient?

Sarcastic remarks. There is a time and a place for humor, and a patient's chart is not it. A joke or a bit of sarcasm may seem innocent at the time, but when that portion of the chart is blown up in front of a jury, it will inspire a negative reaction. If you need to vent, be sure you do it outside of the chart.

Telephone or other outside conversations. Anything relating to the care of a patient needs to be reflected in the chart. For example, telephone conversations with a patient need to be recorded in sufficient detail. If a patient calls your office and leaves a detailed voicemail message, consider having a member of your staff transcribe the message verbatim. Similar attention should be given to communications with physicians, pharmacists, and other health care professionals outside of your practice.

Side effects and risks. Despite your level of skill and proficiency, there are always going to be risks. You no doubt verbally review those risks with a patient very early on in the relationship, but is that reflected in your chart? In advance of the patient's visit, prepare a sheet explaining what products and services will be provided, as well as the potential risks and side effects. After you explain those verbally, have patients sign a form that states you explained the risks to them and that they elected to move forward with the care plan.

Handwriting. For most of us, penmanship is something we never thought about after elementary school. But consider how your handwriting affects the usefulness of your chart. You may be able to easily decipher your own handwriting, but can anyone else? Will a jury think a sloppy chart is professional or believable? What if someone else has to see a patient in your place and cannot read your chart?

Employee turnover. Because years may elapse from the time a patient was seen until you need to actually address a claim, it is not uncommon for there to be turnover among your staff. What happens if a staff member no longer works for you and either cannot be located or left your office on bad terms? If the employee is not available to testify or cannot be counted on to testify, a properly-detailed chart may well make the difference between winning and losing a case.

Get it right
Proper charting cannot be reconstructed after the fact. The time to get it right is during that visit with the patient. You can never tell which of your patients may wind up suing you. It could be the patient who is constantly complaining, or it could be the shy, soft-spoken patient you barely remember.

In the long run, proper charting takes up very little extra time for you and your staff. Its benefits, though, are tremendous. It ensures a consistently high level of care for your patients. It provides you with a ready reference tool if you are ever put in the position of defending yourself on a claim. It assists you in the defense of any claim as it reinforces your professionalism to the jury. Finally, it prevents many claims before they happen.

Tom Glassman is a partner in the Cincinnati, Ohio, office of Smith, Rolfes & Skavdahl Co. LPA. His firm has represented AOPA and its members on professional liability claims throughout Ohio, Kentucky, and Indiana for nearly 15 years. For more information on Tom and his firm, contact him at tglassman@smithrolfes.com or visit www.smithrolfes.com.