LOOMIS BASIN VETERINARY CLINICWINTER LECTURE SERIES

Medical Records as a Defense to your Veterinary License

Experience • Simas & Associates, Ltd. –2002 to present• Deputy Attorney General, Office of the Attorney

General• American Veterinary Medical Legal Association • California Academy of Attorneys for Health Care

Professionals• Legal Counsel, California Physical Therapy

Association Practice Areas

• Veterinary Medical Board and Malpractice Defense • Health Care Law• Professional Licensing and Regulation• Civil Litigation and Appeals• Employment Law and Workplace Regulation

Veterinary Medical Board’s Standards for Recordkeeping• Test Your Knowledge• What the Board Requires in your Records

Veterinary Medical Records Compared to Medical Records

How Licensing Boards Build Cases Using Medical Records

Accusations and Citations for Improper Recordkeeping

Test your knowledge

QUESTION: When conducting a physical examination of a patient, it is proper to record just “normal” if the readings/data are normal?

False-probably not. •Veterinary Medical Board Regulations (to be discussed) provide that you must record “data, including that obtained by instrumentation, from the physical examination.”

Is just writing “normal” recording “data”?

HYPOTHETICAL:

Jojo, a 5 year old beagle, presents on referral from the regular veterinarian to a multi-speciality emergency clinic for a post surgical pyometra consult with an internal medicine specialist Dr. McGillicuddy at 4:48 p.m. Dr. McGillicuddy conducts a physical exam upon presentation and refers the matter at 5:24 p.m.

to the surgeon Dr. Barnabus whose surgical practice and office are at the same clinic.

Dr. Barnabus reviews the record with Dr. McGillicuddy, including the results of her physical exam. Dr. Barnabus performs surgery at 5:48 p.m. and saves the dog’s life.

Does Dr. Barnabus have to perform a separate physical exam?

Veterinary Board said YES and sent Dr. Barnabus an “Education Letter” which stated:

• The Veterinary Medical Board has completed its internal investigation of the above referenced complaint, and is closing this case with this letter of education. Although the Board did not take any action against your license at this time you are advised that any violation of the practice act, including regulations of the Board, can result in the Board pursuing enforcement action including, but not limited to, the issuance of a citation and fine.

In an effort to educate licensees and to maintain the minimum standards of practice in California, the Board is taking this opportunity to remind you that as a licensee you are obligated to be in compliance with the laws and regulations governing veterinary medicine in CA at all times. The Board is advising you to take time to familiarize yourself with the information required in all medical records and to take steps to insure that in the future your records contain all required information.

The Board cited its recordkeeping regulation 2032.3, subdivision (7) which provides that the record must contain:

(7) Data, including that obtained by instrumentation, from the physical examination (No physical exam findings recorded for March 3, 2011); and

That there has to be a physical examination 12 hours prior to anesthesia (Regulation 2032.4).

QUESTION:A veterinarian must keep records for which following period according to the Board?a) 4 years from the last visitb) 3 years from the first visitc) 3 years from the last visitd) 4 years from the last visit

ANSWER: c) 3 years from the last visit according to Title 16, California Code of Regulations, section 2032.3

Can be a defense in a Veterinary Medical Board Investigation

QUESTION:

Mrs. Jones brings her cat Fluffy in for boarding. The cat suffers from diabetes. Mrs. Jones is going on a cruise for 10 days and will be unreachable.

STOP: see where this is headed yet?

Coast Hills Veterinary Clinic takes the cat in for boarding. On day two of the Fluffy’s stay, she gets really sick, vomiting, etc. and needs IV fluids.

What should the attending veterinarian do?

Can the doctor just treat Fluffy in the kennel?

ISSUES:

Was there a physical exam?Was there a veterinarian/patient/client relationship?

Boarding v. Hospitalization—big issue for the Board regarding recordkeeping.

What the Board Requires in Your Records

Veterinary Practice Act Provides (Bus. & Prof. Code § 4855):

A veterinarian subject to the provisions of this chapter shall, as required by regulation of the board, keep a written record of all animals receiving veterinary services, and provide a summary of that record to the owner of animals receiving veterinary services, when requested. The minimum amount of information which shall be included in written records and summaries shall be established by the board. The minimum duration of time for which a licensed premise shall retain the written record or a complete copy of the written record shall be determined by the board.

Veterinary Medical Board Regulations Title 16, California Code of Regulations, §2032.3 provides:

(a) Every veterinarian performing any act requiring a license pursuant to the provisions of Chapter 11, Division 2, of the code, upon any animal or group of animals shall prepare a legible, written or computer generated record concerning the animal or animals which shall contain the following information:

• (1) Name or initials of the veterinarian responsible for entries.

• (2) Name, address and phone number of the client.

• (3) Name or identity of the animal, herd or flock.

(4) Except for herds or flocks, age, sex, breed, species, and color of the animal.

(5) Dates (beginning and ending) of custody of the animal, if applicable.

(6) A history or pertinent information as it pertains to each animal, herd, or flock's medical status.

(7) Data, including that obtained by instrumentation, from the physical examination.

(8) Treatment and intended treatment plan, including medications, dosages and frequency of use.

(9) Records for surgical procedures shall include a description of the procedure, the name of the surgeon, the type of sedative/anesthetic agents used, their route of administration, and their strength if available in more than one strength.

(10) Diagnosis or tentative diagnosis at the beginning of custody of animal.

(11) If relevant, a prognosis of the animal's condition.

(12) All medications and treatments prescribed and dispensed, including strength, dosage, quantity, and frequency.

(13) Daily progress, if relevant, and disposition of the case.

Recordkeeping for patients under anesthesia (Title 16, Cal. Code Regs. Section 2032.4)• For all surgeries under anesthesia, you must chart:

Veterinarian Physical examination within 12 hours of the administration of general anesthesia

Method of respiratory monitoring which “may” include Observation of animal’s chest movements; Observing rebreathing bag; or Respirometer

Method of cardiac monitoring “shall be provided” and “may” include use of stethoscope or electrocardiographic monitor

Recommend charting observation time for safe recovery

Medical Practice Act –Business & Professions Code §2266 provides:• The failure of a physician and surgeon to

maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.

• What is “adequate and accurate”? Depends upon clinical circumstances Matter of expert opinion

A Comprehensive Patient Record Contains:Patient’s condition and treatment Any consultation informing the patient of his or her conditionDiscussion of intended procedures, risks, hazards, and alternative therapyAny instructions given to a patient by telephone

Any cautions regarding prescription drugs that may interfere with a patient’s occupation or driving safely

Special note should be made of any allergies or sensitivities

Surgical records which are comprehensive and promptly dictated or written. The anesthetist should record both pre- and post-operative information.

Instructions to patients on follow-up care.

Pathology and X-ray reports. The justification for treatment.

• Source: Guide to the Laws of Practicing Medicine by Physicians and Surgeons, Sixth Edition, 2010, Medical Board of California (http://www.mbc.ca.gov/publications/laws_guide.pdf)

Contrast with Medical Board record requirements:

• Veterinary Board does not rely exclusively upon standard of care and judgment of practitioners

• Veterinary Board has very specific requirements

• Does not rely upon “expert testimony” to determine violation

• More objective?• More nitpicky?• Which is better?

After a licensing board receives a formal complaint or has other reason to investigate, it has the following tools to do so:•Subpoenas•Release from complaining party •Interviews•Medical records

Subpoenas: Under the Administrative Procedure Act (Govt.

Code § 11180), the head of each department may issue a subpoena to investigate:

All matters relating to the business activities and subjects of the department's jurisdiction;

The violation of any law or any rule or order of the department; and

Any other matter that some rule of law authorizes the department to investigate.

Other methods of licensing Boards obtaining records (how your charts get to the Board):•Release from complaining party or patient

(often without licensee’s knowledge)•Premises Inspections•30 Day Demand Letter for Records

Failure to respond as “unprofessional conduct” “Consulting veterinarian” v. “respondent”

•Reports of Settlement •Other clinic’s records

Licensing Board actions against health care professionals• Accusations• Citations

Recordkeeping violations (grounds for license discipline)• Failure to keep “adequate” records• Failure to keep records• Failure to document treatment in the records• Failure to document things required by Board (e.g.

anesthesia requires physical exam within 12 hours, discharge summary for PT Board, etc.)

How recordkeeping problems manifest in a licensing hearing:•The Golden Rule : “If it is not in the

record, it did not happen” Difficult patient case Difficult client Owner-declined service Referrals History & Physical Prescribing issues Pain management

• If the licensee met the standard of care, it must be in the record “Defensive recordkeeping” Can be the difference between a finding of

negligence or not Can cause the Board to bring a case or not

Alterations to record or amendments Can be viewed as “altering records” Scary examples: Relief veterinarian took set of records “home to

complete” Veterinarian had separate “intake sheet” as part of record Amendments to computerized records

Medical records and use of experts in licensing defense cases•Medical records are the tool of the expert

witnesses•Board experts look first at medical

records•Medical records can cause license

discipline or other issues even if care was proper

Examples Veterinary Board overnight hospitalization case

Overnight monitoring not in record Veterinarian provided uncontroverted testimony ALJ found “no overnight monitoring”

Vision insurance audit All information regarding charges was in record Auditors could not find it Finding “optometrist sent in incorrect and unjustified charges”

Medical Board LASIK case Informed consent records “Eval” versus “Reeval” in cataract case

Steven L. Simas SIMAS & ASSOCIATES, LTD.

Government & Administrative LawSacramento -916.789.9800

San Luis Obispo -805.547.9300

www.simasgovlaw.comssimas@simasgovlaw.com