It’s beyond debate: medical professionals work in an industry rife with risks for both themselves and the people whose health they attempt to maintain and improve. And the numbers of complaints made each year against the licenses of physicians to the Texas Medical Board bear this out. They tend to number in the upper five digits, and come in from sources as varied as patients, the families of patients, and other health care professionals. The Board is empowered with the capacity to levy discipline when one of its licensees violates the Medical Practices Act, or when a Board rule is broken. Among these rules are the rules regarding the keeping of sufficient documentation by physician practices.
Found in Texas Administrative Code, Title 22, part 9, chapter 165, section 165.1, the rule that governs the “Contents of Medical Record” requires physicians licensed by the Board to “maintain an adequate medical record for each patient that is complete, contemporaneous, and legible.”
This means that every record of an encounter with a patient must meet particular requirements:
“1) The documentation of each patient encounter should include:
(A) reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;
(B) an assessment, clinical impression, or diagnosis;
(C) plan for care (including discharge plan if appropriate); and
(D) the date and legible identity of the observer.
(2) Past and present diagnoses should be accessible to the treating and/or consulting physician.
(3) The rationale for and results of diagnostic and other ancillary services should be included in the medical record.
(4) The patient’s progress, including response to treatment, change in diagnosis, and patient’s non-compliance should be documented.
(5) Relevant risk factors should be identified.
(6) The written plan for care should include when appropriate:
(A) treatments and medications (prescriptions and samples) specifying amount, frequency, number of refills, and dosage;
(B) any referrals and consultations;
(C) patient/family education; and
(D) specific instructions for follow up.
(7) Include any written consents for treatment or surgery requested from the patient/family by the physician.
(8) Include a summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made regarding the patient.
(9) Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.
(10) All non-biographical populated fields, contained in a patient’s electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician.
(11) Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.
(12) Salient records received from another physician or health care provider involved in the care or treatment of the patient shall be maintained as part of the patient’s medical records.
(13) The board acknowledges that the nature and amount of physician work and documentation varies by type of services, place of service and the patient’s status. Paragraphs (1) – (12) of this subsection may be modified to account for these variable circumstances in providing medical care.
(b) Maintenance of Medical Records.
(1) A licensed physician shall maintain adequate medical records of a patient for a minimum of seven years from the anniversary date of the date of last treatment by the physician.
(2) If a patient was younger than 18 years of age when last treated by the physician, the medical records of the patient shall be maintained by the physician until the patient reaches age 21 or for seven years from the date of last treatment, whichever is longer.
(3) A licensed physician is required to retain records from a forensic medical examination in accordance with Section 153.003 of the Medical Practice Act.
(4) A physician may destroy medical records that relate to any civil, criminal or administrative proceeding only if the physician knows the proceeding has been finally resolved.
(5) Physicians shall retain medical records for such longer length of time than that imposed herein when mandated by other federal or state statute or regulation.
(6) Physicians may transfer ownership of records to another licensed physician or group of physicians only if the physician provides notice consistent with §165.5 of this title (relating to Transfer and Disposal of Medical Records) and the physician who assumes ownership of the records maintains the records consistent with this chapter.
(7) Medical records may be owned by a physician’s employer, to include group practices, professional associations, and non-profit health organizations, provided records are maintained by these entities consistent with this chapter.
(8) Destruction of medical records shall be done in a manner that ensures continued confidentiality.”
It only takes one breach of the provisions in this rule to put the career of a practicing physician at risk. A physician faced with a complaint of failure to keep proper documentation could try to tackle it on their own, if they are willing to face a higher-risk scenario.
But the better option is to contact a medical license defense attorney. This needs to happen as early as possible in the proceedings because the sooner an attorney is brought in, the more time they will have to craft a compelling response to the complaint—one designed to contain the scope of the investigation. But even if the physician has already arrived on the cusp of the disciplinary proceedings, they should still make that call.
We here at BERTOLINO LLP can help. We are experienced medical license defense attorneys and we know how to navigate the complaint process. We are skilled at assisting physicians in doing everything that can be done to ensure the most favorable possible outcome to their cases.
With offices in Austin, Houston, and San Antonio, we serve clients all over the state. Contact us today or call (512) 476-5757 and schedule a case evaluation.
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