By: Zach Simpson
What follows is a very common scenario that helps demonstrate why proper documentation is essential in all personal injury cases, and what steps can be taken to ensure proper documentation occurs from the very beginning. Typically, following a car accident or slip and fall, a patient will present to the ER with complaints of “neck pain” only. However, the next day the patient might wake up with mid-back, and low back pain that radiates down the right leg, in addition to the original neck pain. The pain does not go away and gets worse, so they decide to make an appointment to come see their chiropractor.
The Problem Starts Here
When a new patient comes in for the first time, he or she typically starts the visit by completing a detailed history form. One of the first prompts is, “please tell us what hurts,” and there is a diagram that accompanies this question where the patient is asked to, “circle the areas that hurt.” More than likely the patient then puts or circles “neck, mid back, low back, and right leg.” The next question that typically follows the diagram asks, “When did your pain begin?” The patient then puts “4 days ago following my car wreck.” The potential problem for the treating chiropractor starts here. When the note is dictated it will more than likely read something to the effect of “New patient presents with history of neck, thoracic, and lumbar pain with radicular complaints, all of which began immediately after an MVA 4 days ago.”
The Potential Problem with The Note Above
In the world of litigation, the initial note shown above may create an issue in a deposition. Here’s an example:
Q: Do you typically take a new patient’s history when they come to your office Dr. Jones?
A: Yes.
Q: And you would agree it is important to take a detailed history from your patient?
A: Yes.
Q: And is it important for your patients to be honest with you when they give you their health history?
A: Of course.
Q: And that is because if their history is not accurate, then your opinions might be inaccurate as well?
A: Yes.
Q: If that is the case then let’s look at Ms. Johnson’s history. Did she tell you when she first came to see you that she was in a car collision on March 17, 2018?
A: Yes.
Q: Dr. Jones, did you ask her what pains she was having after that collision?
A: Yes.
Q: Did she tell you that she had neck pain, mid-back pain, and lower back pain that began immediately after the car accident with my client?
A: Yes.
Q: Doctor, have you ever seen the ER record from Shands Medical Center for your patient, Ms. Johnson?
A: No.
Q: I want to show it to you. Take a minute to read over it, please.
Q: Doctor, tell us please, where on that entire ER record does Ms. Johnson complain of mid back pain?
A: I don’t see that she did.
Q: Tell us where she complains of low back pain following this wreck?
A: I don’t see that she did.
Q: And tell us where she had complaints of right leg extremity weakness or tingling?
A: She did not have that complaint in the ER.
Q: Yet she told you that all of her pains began immediately after this wreck, true?
A: Yes, she did.
Q: And doctor, you are providing opinions today that this lady may need a back surgery which you relate to the car wreck, in part based upon when she told you her pains first began?
A: Yes.
What Is the Result?
The patient’s credibility took a big hit in the scenario above, because the insurance company’s lawyer wants to insinuate that the patient is not being honest. While the patient’s pain more than likely began about 2-3 days after the wreck and IS IN FACT more likely than not causally related to the car wreck, but it was just documented improperly.
Three Helpful Suggestions to Prevent The Situation Above:
- Get a copy of the ER record
As a matter of practice, it is highly recommended that each patient brings with them to their first visit a copy of all medical records they have in relation to their accident. Make sure the patient fully comprehends the importance of why the record needs to be reviewed, and how not reviewing the record may negatively impact their case. This also includes asking the patient to provide the practice with any prior medical records if they have had similar prior injuries. In the event the patient does not have a copy of such medical records be sure that a signed consent form is generated so that the practice’s office can request copies of such records for review.
- Slow Down and Spend Adequate Time Going Over Patient History
Most importantly, slow down and spend adequate time conducting the intake and initial exam while explaining to the patient the importance of answering the questions thoughtfully and accurately. Take just a few seconds to preface questions with, “This is a very important question… have you ever treated for any neck injury before? Ever seen a chiropractor in the past, or massage therapist? Sometimes asking an extra question will provoke a past memory a patient initially disregarded.
If the patient doesn’t know when their pain began, it is better to err on the safe side and simply state that the pain began “sometime following the MVA”. If the term “immediately” is used then it must be verified to be true, and the patient should understand that immediately means immediately.
- If a Record is Wrong, Correct It! Not only is it very important that a patient’s medical records are obtained at the beginning of the patient’s care, it is also imperative that the records are reviewed before a discharge summary is drafted. In the event the patient does not bring their ER records with them to their first visit, and it is later discovered that the initial intake notes are incorrect, the note needs to be supplemented with the correction. The initial intake notes and paperwork completed by a patient and the discharge summary together are what insurance adjusters and defense attorneys pay the most attention to.
Most of the time, discrepancies and errors by patients are not intentional, and most patients have never been in the situation before. They can be unaware of what is important and what is not. Additionally, patients do not realize how extremely technical insurance defense lawyers can be in trying to infer the patient has been dishonest. Patients also do not typically know that the exact moment their pain began will be one of the number one defenses to their claims by the insurance company’s lawyer. Educating and collaborating with patients to ensure their health history exactly right is extremely important or there is a risk that an insurance company will end up dictating the patient’s credibility.
Additional Practice Tips to Assist With Proper Documentation
- Stay Away from Extremes
Stay away from extremes. If the patient says they have no prior injury, one might consider noting that the patient has “no prior chronic neck injury.” This way, if the patient forgot that errant wreck 15 years ago after which they visited a walk-in clinic with neck pain, the practice and the patient are covered.
- Specific Injury Documentation
Document specifically what part of the neck is injured. The neck is not just one part of the human body. There are 7 vertebrae, numerous muscles and ligaments. A prior “neck” injury and a subsequent “neck” injury may be two completely different type of injuries. Is one antero-lateral on the right side; is the second one posterior left lateral? Does one radiate to the shoulder blades where the prior one had no radiating pain whatsoever?
- Proper Use of Pain Scales
Be aware of how and when to utilize pain scales with your patients. One of the biggest issues personal injury attorneys face occurs when a patient may be on medication, or just having a better than average day, and they report that their pain during that instantaneous slice of time is a “0”. Providers have to understand the way that insurance adjusters look at this. They believe that once a patient reaches a “0”, anything else thereafter is NOT RELATED to the car wreck they are being treated for. It is recommended to incorporate averages with pain scales, i.e., since the patient last visited their doctor, or over the last several days. The patient’s pain has to be put in the proper context, because the insurance companies are stealthy and practiced in taking things like this out of context.
