What if Chart History and Verbal History Don't Match?

James L. Lindon, PharmD, PhD, JD

Disclosures

March 22, 2013

Question

I took a patient history and she reported no history of drug abuse. However, when reviewing her chart, previous clinicians documented that she had reported a history of drug abuse. How should I document this?

Response from James L. Lindon, PharmD, PhD, JD
Director, Pharmacy Law and Intellectual Property, Lindon & Lindon, LLC, Cleveland, Ohio

Perhaps the simplest answer is to write, "Patient currently denies a history of drug abuse" or "Patient currently denies a history of drug abuse, though records from (insert dates) indicate otherwise."

The general issue here is addressing perceived or actual discrepancies in the medical record. Specifically, the question deals with documenting the patient's reporting of her own conduct. First, we might resolve the issue by asking the patient if there is a discrepancy and how the patient might account for it. For example, we might simply remind the patient that she previously reported a "fact" (such as smoking, drug abuse, etc.) and now reports a "non-fact" that is inconsistent (not smoking, not abusing drugs, etc.). It is possible that the patient does not deny that something occurred in the distant past but now reports that the behavior stopped.

Assuming that there is not simply a misunderstanding, we should at least take care to ensure that the current additions to the record are as accurate as we can reasonably make them. For example, we might note whether the current laboratory reports and physical exam provide any evidence of drug abuse or withdrawal (pupils dilated or contracted, needle tracks on arms, constipation, diarrhea, etc.). If we are knowingly falsifying the medical record, we invite suggestions of insurance fraud or Medicare fraud. The practitioner should take care to submit information that is currently correct as can be best determined.

The practitioner may also wish to keep in mind that extra consent may be needed for certain psychiatric and substance abuse treatment records. For example, if the medical record is part of a mental health hospitalization, Ohio law provides that such records may only be released under limited circumstances.[1] Perhaps the patient will be reassured by learning that sensitive records do have some additional legal protection. Care should be taken to avoid a "battle" with the patient if possible.

The practitioner may want to keep in mind that the patient has a "right to amend" the medical record as detailed in Title 45 of the Code of Federal Regulations, sections 164.508,[2] 164.524,[3] and 164.526.[4] If the healthcare provider or health plan created the information, it must amend the information if it is inaccurate or incomplete. If the provider or plan does not agree to the request, the patient has the right to submit a statement of disagreement that the provider or plan must add to the patient's record. A determined patient can always be heard.

Improperly altering the medical record could result in civil liability. In thinking about civil liability, it may be helpful to ask, "Would an average juror think I was being reasonable in my actions?" An average juror would probably have no problem with a practitioner correcting an error or misstatement in a medical record. However, a practitioner looking back and altering a patient's history to appease a patient could raise an eyebrow. Altering embarrassing facts from past records could lead to error or delay in diagnosis and error or delay in treatment, which could damage the patient in the future.

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