The Office of the National Coordinator for Health Information Technology (ONC), a staff division of the U.S. Department of Health and Human Services (HHS), is the lead agency charged with formulating the federal government’s health information technology (IT) strategy and coordinating federal health IT policies, standards, programs, and investments. In December 2016, the 21st Century Cures Act was signed and set to be implemented by the ONC on Nov. 1, 2020. 

The primary purposes of the Cures Act are to expand interoperability among electronic health records, health care workers, and payers while expanding the access and transparency of health information to patients. The COVID-19 pandemic pushed the November implementation date back until April 5, 2021, meaning that preparation by all physicians should be under way for several key aspects of the new law. 

The aspect of the law that most affects emergency physicians relates to documentation. Because the law makes free and easy access to what we write readily available in many instances, we should expect more scrutiny of what we document (or don’t document) in our medical records.  In fact, the Cures Act deters “information blocking” by all proprietors of health information by imposing a $1 million fine for each instance in which patients are unreasonably restricted from their health information. With the forthcoming ease of access to medical and billing records, ED physicians should be prepared to justify their ordering patterns and plan on defending their medical record entries more often, even in cases that had acceptable outcomes. 

At press time, my office has already received more than 200 requests to review the reasonableness of emergency medicine bills along with the medical necessity of diagnostic testing. I expect the number of requests to increase for two reasons. First, more patients will have greater access to their medical records than ever; some will simply be curious. Second, as patients are increasingly financially responsible for their medical bills because of high-deductible medical plans, patients may start to audit their visits in an attempt to determine what they’re paying for. 

Unfortunately, I see some recurring self-inflicted documentation wounds incurred by emergency physicians in the course of their work. As such, to ensure the contents of your medical records do not incite one of your patients to pursue legal action (or even a complaint to the hospital), keep these suggestions in mind as you document.

1. The medical record is not the place to air grievances against another physician or the patient. Hostile comments are notorious stimuli for malpractice litigation and defamation suits against the author of the comments. Further, if you do have disparaging comments to document about a patient, ensure there is ample objective support for the entries. For example, if a patient appears to be malingering or inappropriately drug-seeking, document your query of your state’s prescription monitoring service or the patient’s other similar visits to your hospital system with comparable complaints. Plaintiffs’ attorneys and state medical boards are much less likely to pursue such complaints when the physician’s actions are clearly, coherently, and justifiably documented. 
2. All diagnostic testing should be supported by subjective and objective documentation. Remember, we are the gatekeepers of diagnostic tests that expose patients to pain, radiation, and costs. For example, a patient complaining of neck pain following a motor vehicle crash should not receive any imaging if the physical exam of the neck is documented as normal and a relevant clinical decision tool, such as the NEXUS criteria, is applicable. When subjective complaints are not supported by objective physical exam findings, there can be no justification for cervical spine imaging. Patients get upset when they are charged $3,000 for computed tomography of the cervical spine that was never clinically warranted. Just as important as the decision is documenting the rationale(s) for not testing. For example, for the patient described above, the emergency physician should write, “Has no positive NEXUS criteria to support C-spine imaging.” 
3. There is a strong likelihood many resources will be in short supply during the COVID-19 pandemic. As such, there is much discussion in risk management literature about a crisis standard of care. Remember, this theoretically elevated and protective standard can only shield you if you clearly and transparently document why you are performing (or not performing) something that would ordinarily be indicated during normal times. If no ventilator is available, state that in the record. Also consider noting failed attempts at sharing ventilators or transfers to other facilities due to overwhelming patient volumes caused by the pandemic. Years from now when a legal claim is initiated, many may not recall or understand the overwhelming circumstances in which many emergency physicians practiced during this period. Medical documentation will be the only record of what occurred and why. 

Take a few minutes to ensure clear and coherent documentation. Doing so can avoid years of stress arising from claims hinging on ambiguous or inadequate documentation. While this has always been true, the Cures Act makes it all the more relevant. 

Note: No information within this report should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances.

Dr. Totz is facility medical director at First Choice Emergency Room at Adeptus Health in Texas.