top of page
  • Elliott M. Stein, M.D.

Beginning In 2021, Changes to Medical Records Documentation May Affect Legal Cases.

The importance and Relevance of Medical Records in Legal Matters:

Many legal matters involve questions about the health, wellbeing or medical condition of a party to the case or another person of interest. This can occur in both civil and criminal cases. Information may be sought to evaluate health related issues. These could be current or past. The information could support or refute a line of inquiry, or the theory of the case, or the impact of damages incurred.

Various types of litigation could involve medical questions. For example, these may include situations of illness or injury or disability, where health status is a primary focus. In questions of medical malpractice or medical mishap, the records can be vital. Another case may involve questions of cognition or competence or capacity, where health or illness can affect or determine the outcome. With questions concerning testamentary issues or undue influence, the medical conditions might establish a person’s abilities or limitations or susceptibilities. In matters of abuse and other situations, the medical findings may reflect the impact of the problem.

When an attorney seeks medical information, a primary source of this is likely to be from various relevant medical records. The nature, amount, quality and detail of these medical records, and particularly, the medical history, examinations, findings and medical decision-making that they document, can have a significant impact on the case. The more complete, accurate and detailed these records are, the more they can inform the legal approach to the matter at hand.

Medical Records in the Past:

Originally, doctors kept their own records about their patients in their own individual files, organized according to the doctors’ training, style, habit, motivation, time, and whim. Similarly, in the past, individual hospitals and other health institutions varied in their medical record documentation.

In the last several decades, medical record keeping has become more systematized and standardized.

One type of medical record keeping was developed by organizations, including organized medicine, governmental agencies, and the insurance carriers. The system was designed to facilitate communication between medical care providers and those who were paying for the medical care, including governmental institutions and insurance companies.

This type of recordkeeping created a structure for reporting and tabulating the problems and diagnoses used with patients, and the services provided to patients. The system established lists of numeric and alpha-numeric codes assigned to the various diagnoses and services. The list of problems and diagnoses was based on the World Health Organization’s International Classification of Diseases (ICD). The list of services was called Current Procedural Terminology (CPT). Physicians and other medical care providers were to use the diagnosis codes and the services codes as communication tools. These codes would explain to the third-party payers the nature of the problem being treated and the service being given for that problem. This information would then serve as justification for the payment issued to the healthcare provider.

As this approach proceeded, it became important to establish criteria for these different service codes in order to justify the payments being made. The overwhelming majority of medical services were provided in face-to-face encounters between doctors and patients, and involved doctors talking with patients, examining them, and making decisions and recommendations. Under the CPT, these types of services were called Evaluation and Management Services (E&M).

Medicare and Medicaid are the biggest health care payers in the United States, and are jointly under the Center for Medicare and Medicaid Services (CMS), a division of the US Department of Health and Human Services.

Working together, the American Medical Association and CMS/Medicare defined the documentation of the E&M services in a standardized manner. The goal was to have physicians provide a required set of information to establish and document the type and amount of service that they provided to the patient, and why.

In order to allow for the wide range of medical problems and patient characteristics and treatment options, the evaluation and management standards had a complex multi-level structure, requiring physicians to document many aspects of the patient’s history, examination, and medical decision making in a structured manner.

In order to enforce and reinforce physician compliance with this necessary intensity of documentation, CMS coupled compliance with this documentation with reimbursement for the services, providing higher level of payments for medically necessary services of higher complexity. This system also gave some degree of corresponding safe-harbor protection if the doctor’s service provision was audited.

While this system has general specificity and broad applicability, it is also very detailed and can be onerous and time-consuming to implement and follow. Consequently, many doctors felt overwhelmed or burdened by this.

Problems with the Medical Records Documentation Systems:

There were many calls for the system to be revised, but the challenge of devising a new, less complex system that would still capture the needed information proved too difficult and controversial for many years.

There were also were also unintended consequences from the existing E&M system. These included tendencies for inaccurate under-coding and over-coding of services with corresponding under- and over-payments, complaints of excess physician time spent on medical records documentation at the expense of patient care, the creation of a new billing workforce and a new industry of medical billing, and a significant influence on the design of Electronic Medical Record (EMR) systems. Some EMRs became bloated with an excessive amount of repeated, auto-populated, and cut-and-pasted information; furthermore this pattern sometimes led to older, incorrect, or out-of-date data being included in subsequent records.

Over time, there was also political and governmental movement towards reducing the paperwork burden on providers, insurers, and government agencies.

Recent Changes in Medical Records Documentation:

In response to these factors, beginning in 2018, modifications to the Evaluation and Management system were proposed by CMS. After two years of going through the publication and review process, some changes were begun in January 2020, and the remainder are being fully implemented in January 2021.

As part of these changes, the previous, more elaborate, detailed record keeping requirements for the Evaluation and Management services were eased. They no longer mandate recording of specific types and amounts of data in order to meet the criteria for a specific billing code.

The new 2021 E&M documentation standards require less documentation of their patient care visits by providers. They reduced the amount of information the doctor needs to put in a medical record for a visit to justify a particular amount of care. This also means that in order to be paid for a service, a doctor does not have to include the level of detail formerly required by Medicare regulations. In some cases, the needed documentation might be as little as saying how long the doctor was with the patient and some statements about why.

The new guidelines revise the number of various different service codes, starting with outpatient visits. They modify their definitions. They change the time requirements. They want doctors to take and document a medical history and performance of a medical examination only as medically appropriate, and they adjust the descriptions of the medical decision-making process for all of the codes. They allow clinicians to choose the E/M visit level based on either the degree and complexity of medical decision-making, or on the time spent. The new regulations also permit the doctor to depend on information in the chart documented previously by ancillary staff or the beneficiary, rather than collect the information personally.

The guidelines do not restrict or prevent a doctor from providing more documentation than the minimum required, and doctors are still permitted to use the older criteria, and they specifically say that they leave it to the doctors’ judgment. Of note, this type of statement excuses CMS and AMA from such potential accusations that they are inhibiting the collection of medical information, and makes it the responsibility of the doctors. However, since doctors do not have to provide as much written documentation in order to collect the same fee for their services, inevitably, time demands, human nature and market economic forces will contribute to less medical record documentation of the services provided.

Predictably, other insurers and regulatory bodies will follow this new pattern of documentation standards set by CMS/Medicare.

Potential Consequences of these Changes for Legal Matters:

In legal situations, medical records are used in many different cases. These include contested wills and trusts, undue influence, disability cases, malpractice claims, capacity matters, cases of neglect and abuse, employment claims, injury, and others. The records may document the medical, mental, behavioral or emotional state of an individual at a given time and situation. Attorneys, and their expert consultants and expert witnesses, often use medical records to establish or disprove claims in a case.

Potential consequences of these changes may occur in medical situations, for example when an individual previously treated by one physician is subsequently seen by another, or during an emergency event, where people unfamiliar with the patient must use the existing medical records to plan treatment. The amount and degree of detail of the records could affect the approaches and decisions made.

Attorneys with physician clients may want to remind them to continue to document their medical records in adequate detail to justify and defend their work should a future medico-legal need arise.

These forthcoming changes in the documentation requirements may affect the volume, character, and descriptive detail of patients, and their problems and symptoms, as well as the nature and extent of the examination and the findings of the patient by the physician. Cases that hinge on medical observations may have less detail of information to depend upon.

Medical records are used for a variety of other legal purposes, and the amount of information that may be found in the records of the future may be condensed from what is often found currently. In the future, this changed (and likely reduced) amount of documentation may contribute to problems in circumstances where having a greater amount of such information would be important or valuable. Attorneys should be aware of this change in the nature and quantity of medical records.

For Consultation about Medicare Documentation and Billing Issues, or other Geriatric Psychiatric Legal Consultation, contact Elliott M. Stein, M.D.


bottom of page