News & Insights

Documentation Recommendations for Healthcare Services and Medical & Surgical Procedures

March 26, 2020

Amy M. Winters, Attorney at Law, Partner, Jones Walker LLP


Documentation Recommendations for Healthcare Services and Medical & Surgical Procedures

This article was updated 4/6/2020 at 9:30 a.m.

For the time being, medical decision-making and healthcare delivery are changed. The Louisiana Department of Health (LDH) issued orders limiting medical and surgical procedures in response to the statewide public health emergency in an effort to curtail the spread of COVID-19. Healthcare is now being rerouted from face-to-face encounters to delivery via telehealth. Discussions with your patients and the supporting documentation also are changing. This article provides recommendations concerning discussions about and documentation of care during the current restrictions and limitations on medical and surgical procedures and other healthcare services.  

Is It an Emergent or Urgent Medical and Surgical Procedure? Can it Be Postponed? What to Document?  

LDH’s order does not prohibit a provider from performing medical and surgical procedures involving an emergency medical condition or a procedure necessary to avoid further harm from underlying conditions or disease. Providers should consult their respective medical boards for updated information and guidance.

The Louisiana State Board of Medical Examiners (Board) recently issued guidance regarding LDH’s order to postpone medical and surgical procedures. The Board’s guidance boils down to a simple question: would the delay in care in this patient be harmful to the patient’s health? The provider must exercise his/her professional medical judgment on a patient-by-patient basis, drawing on their medical knowledge, training and experience within the scope of their license and specialty. The Board noted the intent of LDH’s order is to curtail potential exposure to COVID-19 and to preserve resources such as personal protective equipment, suggesting that even waiting rooms are potential sources of infection for healthy patients. The Board suggested that the justification and support for a decision to proceed with a medical or surgical procedure during the pending disaster order should be documented, including citation of supportive best practices, guidelines, standard of care and/or medical literature. 

The Arkansas State Medical Board issued a strong recommendation that all physicians follow a strict protocol to ensure mitigation of the spread of COVID-19 and postpone any elective procedure, including any elective surgical procedure, any and all cosmetic procedures, and any treatments involved at a medical spa. 

This resource may help identify which procedures should be curtailed:

These are some of the considerations to add to a discussion with your patient about whether or not to proceed with the procedure, and what to document:

  • Discuss with the patient the current public health orders and restrictions related to the patient’s current medical treatment and document the patient’s expression of understanding of the current medical restrictions.
  • Explain your opinion that the diagnosis/condition is an emergency medical or surgical procedure, or necessary to avoid further harm from the underlying disease, and document your opinion with supporting reasoning.
  • Traditional Informed Consent discussion should be supplemented with the following as appropriate: 
    • The risks associated with postponing the procedure.
    • The risks to the patient associated with proceeding with the procedure, including potential risks associated with COVID-19.
    • Additional conditions or risks associated with pre- and post-procedure care for the patient, including risks to or restrictions placed on individuals involved in pre- and post-operative care (e.g., visitation restrictions, risk of exposure to COVID-19 to caregivers).
    • The patient’s consent to proceed with or postpone the procedure or other healthcare services should be documented.

If it can be Postponed? Physician Decision to Postpone Healthcare Services, Including Medical and Surgical Procedures  

The provider must use professional judgment as to whether the healthcare services, including medical or surgical procedures, can be safely postponed and have a discussion with the patient if recommending postponement. Documentation of these discussions should include this type of information:

  • The patient understands that the current public health orders require that non-emergency or non-urgent medical procedures are postponed (currently for thirty days, but may be extended). 
  • The provider’s opinion, including basis, that the patient’s treatment/procedure can be postponed, meaning that the patient’s condition is not an emergency and postponing the surgery/treatment/procedure is not expected to result in any harm to the patient.
  • That the patient was informed by the provider that the surgery/treatment/ procedure/visit is being postponed because of the LDH Order and the patient verbally consented to deferring healthcare. 
  • Instructions were provided to the patient of potential health risks, if any are known.
  • The patient was given information in the event of a change in or worsening of the patient’s condition, in addition to the provider’s contact information and emergency department contact information, as may be required under the circumstances.
  • Telehealth may be appropriate instead of treatment being postponed. Explore that with your patient.

What if it can’t be Postponed? Medical Care and Services Cannot be Postponed and Should be Rendered in a Face-to-Face Encounter  

A provider may be of the opinion that the patient’s condition or disease requires evaluation or treatment, and that a telehealth visit is not medically appropriate and not in keeping with the prevailing standard of care. Documentation of these discussions should include this type of information:

  • The patient understands the current public health orders and the restrictions related to the patient’s current medical condition.
  • The provider’s opinion, including basis, that the diagnosis/condition requires emergent/urgent evaluation, and is necessary to avoid further harm from the underlying disease.
  • That the patient (or the patient’s representative, as circumstances dictate) has been informed of and understands:
    • The provider’s recommendation for a face-to-face encounter as necessary to meet the patient’s current needs.
    • The risks to the patient associated with proceeding with the procedure, including potential risks associated with COVID-19.
    • Additional conditions or risks associated with pre- and post-procedure care for the patient, including risks to or restrictions placed on individuals involved in pre- and post-operative care (e.g., visitation restrictions, risk of exposure to COVID-19 to caregivers).
  • The patient’s consent to the face-to-face encounter. For example:
    • “The patient’s medical condition or disease requires a face-to-face visit for continued treatment in accordance with the standard of care and is medically appropriate. I have explained to the patient the risks associated with a face-to-face visit associated with the COVID-19 virus, but that it is my opinion that a face-to-face visit is required to ensure appropriate care is provided to the patient during the public emergency. I have explained to the patient that measures are being taken to avoid such risks, however, the risk associated with this contagious virus cannot be eliminated. I also informed the patient of the possibility of quarantine and isolation measures that may be required following the face-to-face visit. The patient understands the risk of the face-to-face visit, and has consented to proceed. Appropriate instructions for follow-up care have been provided.”  Signed by patient and provider

If the patient elects to defer a face-to-face encounter, or the patient requests a telemedicine encounter instead, sample documentation is provided below:     

  • “The patient’s medical condition or disease requires a face-to-face visit for continued treatment in accordance with the standard of care and is medically appropriate. I have explained to the patient the risks of a face-to-face visit due to the COVID-19 virus, but that it is my opinion that a face-to-face visit is required to ensure appropriate care is provided to the patient during the public emergency. The patient has acknowledged my concerns, but has elected to defer the face-to-face visit and/or use a telehealth visit during the public emergency. I provided contact information and instruction for follow-up care in the event of a change/worsening of the condition and/or emergencies.” 

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