14 Apr Document, Document, Document
Any of the agencies I am so honored to work with know that one of my favorite sayings is, “If it is not in the file, it didn’t happen.” And in actuality, this statement is as true as it gets. Documentation is probably the most important issue that can determine whether an E&O claim might even happen – or if the E&O claim does happen, what direction it goes. Anyone that has gone to an E&O class in the last 20 years has no doubt heard the phrase, “document, document, document.”
What about the agency staff that have never been to an E&O class? In the E&O sessions that I conduct onsite at the annual review time, I will typically ask how many attendees have not been to an E&O class before. It is interesting to note that during the last 10 times I asked that question, over 50 percent of the class had never attended an E&O class. If this is the case, it is likely that many staff may not truly know the importance and value of documentation.
What does good documentation look like? Some key issues involving documentation include:
- It should be handled promptly and accurately. This does not mean waiting until the end of the day and then documenting all of the files. I don’t know about you, but by the end of the day I am probably going to forget who said what. It is best to document the file as soon as you can while it is fresh in your mind. Also, in those situations where you are going to send the client some form of written communication (such as email), the more promptly this is handled should increase the accuracy of the conversation.
- It must be detailed. Probably a good frame of reference is that you feel comfortable that the email will tell the full story if it ever becomes part of an E&O matter. File documentation such as, “spoke with insured regarding their HO policy” does not really tell a story at all. However, the following level of documentation tells a story: “spoke with Mrs. Jones regarding the addition they put on the house. She will call tomorrow with the square footage of the addition.” Further, agency staff should document the files taking the position that if they are not in the office the next week and the client calls, their agency colleague will be able to understand the issues based on the file documentation.
- It should be generated by the person that had the discussions. In other words, if the producer is the one that had the conversation with the client, the producer should be the one entering the documentation in the file. Some agencies do not want their producers in the system so it would be advisable for the producer to write up or type up the conversation and send it to the appropriate person for inclusion in the system.
- The documentation should be void of emotion. Let me say this another way – don’t put anything in the system that you wouldn’t want a jury in the courtroom to read. Some may laugh at this, but I have been involved as an expert witness in cases where the file documentation was blown up in size for the jury to read.
- There should be no admission of fault. It is important that the contents of an email or the agency file notes not admit any potential liability. This type of issue has come into play on many E&O cases where the agency staff member somewhat apologized for the client having an uninsured claim. A statement such as, “I am sorry we didn’t provide you with flood coverage” could be damaging to the agency’s defense.
Bottom line, documentation is so important. Agencies should have a document spelling out the expectations, and all staff should receive this document.