How do you correct an error in a patients chart?

Question

I work in an operating room, where we have EMRs. We check each other's charts for mistakes, sometimes days later. We are told to make corrections if we find mistakes. Is this legal?

Response from Carolyn Buppert, MSN, JD Healthcare attorney, Boulder, Colorado

It's good that you are doing internal audits -- staff learn by analyzing what they are doing right and identifying what they need to improve. It is legal to correct mistakes and make late entries, if it is done appropriately. If not done correctly, it could be illegal and, at minimum, more detrimental than helpful.

With your correction, you need to make it clear that the entry is a late entry and that you are correcting a mistake. You should not try to eradicate the erroneous previous entry. You should not try to make the new entry appear to be the original entry. First, know that there may be state laws that apply to this situation. Hospitals should have policies on how to correct errors in the medical record. Your hospital's legal counsel should be in on the discussion about the policy, should review the state law, and should review the policy.

In general, the appropriate way to correct an error is the same as with paper records -- that is, make a new entry with today's date and time, stating that you are correcting an error in a previous entry; give the date and time of the previous entry; and enter the corrected data or explanation. Without knowing the details of your electronic record, I can't say exactly how to accomplish this, but what you want is for the original entry to be visible, with a notation that alerts a reader that this part of the record has been corrected and directing the reader to the corrected information. The original author of the report should be the individual making the correction. If someone else is making the correction, the new author should explain why he or she is making the correction.

The reason for keeping the original entry is that if there is a challenge to the care or the documentation (for example, a lawsuit filed or a claim for reimbursement rejected), the hospital and clinicians need to avoid any indication that the records have been altered in anticipation of litigation or payer audit. Alteration of records (sometimes called "spoliation of the evidence" in a legal proceeding) is detrimental to the defense of a malpractice action or a claim for payment. The opposing party is entitled to an assumption that the altering party had a "consciousness of guilt." Defense attorneys say it is nearly impossible to defend a hospital in a malpractice case when the record has been altered.

A Website for nurse legal consultants tells attorneys to be alert to signs of tampering with medical records. "Tampering with the record involves any of the following: adding to the existing record at a later date without indicating [that] the addition is a late entry, placing inaccurate information into the record, omitting significant facts, dating a record to make it appear as if it were written at an earlier time, rewriting or altering the record, destroying records, or adding to someone else's notes."[1] If records are altered in anticipation of a payer audit, then the payer, when discovering the alteration, presumes the hospital or clinician has billed fraudulently.

The bottom line is that internal audits are good. When mistakes are identified, focus on educating the clinician about his or her error and how to document better in the future. In general, correcting errors found during internal audits should be done rarely and carefully, without intent to deceive.

Special Reports > Exclusives

— Technology is lacking, process may be unclear

by Cheryl Clark, Contributing Writer, MedPage Today September 14, 2021

Last Updated September 15, 2021

Click here for the main story, "Open Notes Shines Light on Errors in Patient Medical Records."

Changing a medical record to correct an error is anything but an easy process.

Under federal HIPAA rules, patients have the right to request that doctors fix errors, but the provider has up to 60 days to respond, and can ask for a 30-day extension.

The provider also can refuse, but must specify the reason in writing.

If the fix moves forward, the doctor can't alter the original note, but the patient has the right to have an amendment with his or her version of the facts placed in their electronic medical record (EMR).

Most EMR program modules do not let the patient edit or question something in an electronic note, although software entrepreneurs are working on solutions that will enable that feature.

"There's not a smooth process for doing that in today's EMRs. They didn't really build that into the certification criteria," said Deven McGraw, an attorney and chief regulatory officer for Ciitizen, a consumer health technology startup.

Then there's the question of who is responsible for actually making the fix and whether there even is a process. The doctor might refer the patient to the office staff or the doctor's nurse, who might refer the patient to the practice's health information or medical records office, which may send the patient back to the doctor.

It's also unclear whether any federal rules require the doctor to post the patient's requested amendment in the patient's portal so other providers can see the change. In one case relayed to MedPage Today, a doctor told a patient that he accepted the amendment but did not download it into the portal.

When asked to amend a chart note that incorrectly diagnosed this reporter with osteoporosis, the physician replied that it was inserted only so that Medicare would cover bloodwork for a vitamin D level, for which the patient would otherwise have to pay. "I was trying to save you money," the physician said.

That's not just wrong, it's potentially harmful, said Heather Gantzer, MD, immediate past chair of the American College of Physicians' Board of Regents.

If the patient came to the ED with acute back pain and compression fracture on a plane x-ray, and the ED team sees osteoporosis in the patient's history, a treating physician might say, "this happens" in people with osteoporosis, and initially discount any idea of something more serious, Gantzer said.

If the patient's record didn't indicate osteoporosis, she said, "maybe you are worked up with an MRI sooner rather than later, to be sure it's not a tumor."