2011 Lorman Education Series - Steven L. Simas.

1. Steven L. Simas, Esq.

2. Steven L. Simas
 Experience
 Simas & Associates, Ltd. –2002 to present
 Deputy Attorney General, Office of the Attorney
General
 Vice President, California Academy of Attorneys for
Health Care Professionals
 Legal Counsel, California Physical Therapy
Association
 Practice Areas
 Health Care Law
 Professional Licensing and Regulation
 Civil Litigation and Appeals
 Employment Law and Workplace Regulation

3. Part I:

4. Medical Board’s Standards for
Medical Recordkeeping
 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

5. Medical Board’s Standards for
Medical Recordkeeping
A Comprehensive Patient Record
Contains:
Patient’s condition and treatment
Any consultation informing the patient of his
or her condition
Discussion of intended procedures, risks,
hazards, and alternative therapy
Any instructions given to a patient by
telephone

6. Medical Board’s Standards for
Medical Recordkeeping
 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.

7. Medical Board’s Standards for
Medical Recordkeeping
 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)

8. Contrast: The Physical Therapy Board’s
Standards for Recordkeeping
 Unlike the Medical Board, this is
governed by Physical Therapy Board
Regulation:
 Title 16, Cal. Code Regs. § 1398.13
provides that a physical therapist shall
document and sign specific things in the
patient record.
 Like the Medical Board, failure to do so can
be “unprofessional conduct.” (Bus. & Prof.
Code § 2660(i)).

9. Contrast: The Physical Therapy Board’s
Standards for Recordkeeping
 Board Regulation 1398.13 requires the
following to be documented in the record:
○ (1) Examination and re-examination
○ (2) Evaluation and reevaluation
○ (3) Diagnosis
○ (4) Prognosis and intervention
○ (5) Treatment plan and modification of the
plan of care
○ (6) Each treatment provided by the physical
therapist or a physical therapy aide
○ (7) Discharge Summary

10. Contrast: The Physical Therapy Board’s
Standards for Recordkeeping
 Contrast with Medical Board record
requirements:
 PT Board does not rely upon standard of
care
 Very specific requirements
 Does not rely upon “expert testimony” to
determine violation
 More objective?
 More nitpicky

11.  Lessons and Final Thoughts
 What is a “complete” or legal medical record
depends upon the profession of the health
care provider
 Proper records can be the subject of an
expert opinion
 Some licensing boards have very specific
requirements
 Failure to keep proper records is
“unprofessional conduct” for most licensed
health care providers

12. Part II:

13. How Licensing Agencies Build Cases
Upon Medical Records
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
 Hospital records

14. How Licensing agencies build cases
upon 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.

15. How Licensing agencies build cases
upon medical records
 Other methods of licensing Boards
obtaining records:
 Release from complaining party or
patient (often without licensee’s
knowledge)
 805 Reports/Peer review reports
 Reports of Settlement
 Hospital records

16. Part III:

17. Accusations and Citations For Improper
Recordkeeping
 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. discharge summary for PT Board)

18. Accusations and Citations For Improper
Recordkeeping
 How recordkeeping problems
manifest in a licensing hearing:
 The Golden Rule : “If it is not in the
record, it did not happen”
○ Difficult patient
○ Referrals
○ History & Physical
○ Prescribing cases
○ Pain management

19. Accusations and Citations For Improper
Recordkeeping
 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

20. Accusations and Citations For Improper
Recordkeeping
 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

21. Accusations and Citations For Improper
Recordkeeping
 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

22. Steven L. Simas, Esq.
SIMAS & ASSOCIATES, Ltd.
Government & Administrative Law
Sacramento -916.789.9800
San Luis Obispo -805.547.9300
www.simasgovlaw.com