documentation you can defend on
TRANSCRIPT
Documentation You can Defend
on…
Lisa D. Shannon RN, JD
Corporate Manager, Clinical Risk Services
Corporate Risk Services
2
Seven-thirty in the morning the phone rings on the
nursing division, its Risk Management on the line, asking you to stop by the Department as soon as possible;
You finish report, assess your patient, find someone to cover for you and walk over to the Risk Management Department and discover…
YOU HAVE BEEN SERVED AS A DEFENDANT IN A LAWSUIT!
Imagine this…
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No matter how skilled you are, poor
nursing documentation will undermine your credibility if you’re ever involved in a lawsuit.
But, I’m a Great Nurse!
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Our Focus Today…Practical Guidelines that will not only improve patient care, but help shield you from legal fallout if something does go wrong.
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Concepts
The Purpose of the Medical Record
Standards of Care
Finding Flaws in the Medical Record
Avoiding Documentation Pitfalls
Preserving the Medical Record
Common Allegations and Defenses
Statutes of Limitations
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Purposes of the Medical Record
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Nurse and Physician working in a correctional institution were accused of
professional negligence.
In the lawsuit, representatives from the inmate’s estate alleged that Hartzell (“the inmate”) had been denied proper medical care, including medication, an omission that allegedly caused his death.
After reviewing the evidence, the court concluded that Hartzell was not denied proper medical treatment.
To support this conclusion, the court pointed to the documentation, concluding that there was no indication that the physician or nurse, intentionally denied or unreasonably delayed treatment.
Accordingly, the Michigan Court precluded Hartzell’s estate from its claims against the nurse or the doctor accused.
Hartzell v. City of Warren, et, al.
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Substantiating the health condition, illness, or presenting concern
of a patient;
Communicating among health care professionals;
Recording the patient’s response to care;
Auditing care for quality improvement, third-party payment, and governmental and regulatory purposes;
Conducting research; and
Resolving competency, disability, guardianship, and other legal issues.
Purposes of the Medical Record
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Working Definitions
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Conduct that falls below the standards
of behavior established by law for the protection of others against unreasonable risk of harm.
A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.
Negligence
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The failure to provide the
prevailing standard of care to a patient, which results in injury, damage, or loss to the patient.
Professional Negligence
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Duty to the plaintiff existed. Duty is established when a
health care professional assumes care of a patient under her scope of practice, licensure, and employment.
Breach, the standard of care was breached. The standard of care is based on what a reasonably prudent professional with similar expertise and responsibilities would have done under similar circumstances.
Damages, The patient was injured.
The injury was caused by the breach in the standard of care (Proximate Cause).
Elements of Negligence
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The person filing a lawsuit is the
Plaintiff. The person defending themselves
or their organization from the lawsuit is the Defendant.
Plaintiff v. Defendant
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A duty placed upon a civil or
criminal defendant to prove or disprove a disputed fact.
Burden of Proof
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So, What’s the Plaintiff’s Attorney Looking For?
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The plaintiff has the burden of proof.
If he prevails, he’s awarded damages based on his economic losses and possibly noneconomic losses.
In professional negligence cases expert witness testimony is required. State law determines who can testify as an expert.
In most states, Good Samaritan laws shield health care professionals from liability if they volunteer to help someone in good faith in an emergency outside the scope of their employment.
Lawsuit Alleging Professional Negligence
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Standards of Care
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Defines what is accepted as ‘reasonable’ under the
circumstances.
Defines the degree of skill care, and judgment used by an ordinary prudent health care provider under similar circumstances.
Standards of Care are determined by state Nurse Practice Acts, state and federal regulatory agencies, oversight agencies (such as Joint Commission), policy and position statements by specialty societies, health care institutions and organizations, current literature, among other sources.
Standards of Care
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Finding Flaws in the Medical Record
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Inconsistencies, inaccuracies, or voids in the medical record are Red Flags to the plaintiff’s attorney.
These red flags may assist the plaintiff’s attorney in proving her case.
Flaws in the Medical Record
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An attorney seeking to bring a professional negligence claim examines the medical record for evidence that will help her prove her case such as:
Lack of treatment; Delayed, substandard, or inappropriate treatment; Lack of patient teaching or discharge instructions; Charting inconsistencies; References to an incident report; Battles between health care providers; Lack of informed consent; Fraudulent or improper alterations of the record; and Destruction of records or missing records.
Looking for Red Flags in the Medical Record
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Pages without any patient identification – no patient stamp;
Notes written on the wrong date, or times that don’t correlate with the remainder of the chart;
Long narrations that don’t seem to be sequential;
An entry written over previous entry to correct or change it;
Computer entries back dated or narratives that do not follow the chronology of the patient’s medical course; or
Inappropriate comments or healthcare provider infighting in the medical record.
Red FlagsThese examples are sure to catch her
eye!
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Avoiding Documentation Pitfalls
Base your documentation on objective assessment findings; and
Document as close to the intervention as possible.
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Make sure no mysterious gaps in the medical
record would permit someone to speculate about what happened.
If paper charting, don’t leave spaces so you can add more documentation later.
This type of “squeezed in” charting could appear as a cover-up.
Documentation PitfallsGaps
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Never chart to cover up an incident or document
health care that wasn’t provided.
Failing to accurately and completely document the events of an adverse incident and subsequent treatment can result in an unsolved mystery.
The plaintiff’s attorney will try to solve this mystery by creating a theory about what happened.
Without solid documentation, the attorney’s theory may be difficult to refute.
Documentation PitfallsGaps
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Document all medically relevant facts related
to an incident in the medical record.
Document the investigation of an incident in the EVENT REPORT!
Do not document that an event report has been filed in the patient’s medical record.
Tip
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Inappropriate comments about a patient or
labeling the patient or his behavior suggests that you were biased against him/her.
These terms might suggest that you didn’t provide the patient with the same level of care that you gave to other patients who were more agreeable; and
Could lead to allegations of professional negligence or defamation.
Documentation Pitfalls Bias
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Keep your personal opinion out of the record.
You should factually and objectively document the patient’s behavior (including any failure to adhere to treatment) if it’s relevant to the patient’s care.
This could help your lawyer demonstrate that the patient contributed to his own problems while you maintained a high standard of nursing care.
Documentation Pitfalls Bias
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When documenting make sure you are following your entity’s
policies and procedures.
Deviating from the established entity policies and procedures may allow the plaintiff’s attorney to create an unflattering scenario for the jury.
For Example:
The entity’s policy dictates that a complete nursing assessment will be documented Q8 hours, however, nursing staff only completes a complete assessment Q12 hours.
This finding can be interpreted as a deviation from the entity’s standard of care.
Documentation Pitfalls Deviation from Policies and
Procedures
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Preserving the Integrity of the
Medical Record
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Accurate and complete patient information must be entered on all
paper and electronic documents;
EKGs, radiology, fetal monitoring strips and other test reports must be properly labeled, sequentially listed and kept with the medical record;
Ensure all unofficial papers are not included in the medical record;
Unofficial abbreviations should not be used; and
The nurse must read medical record entries and assess the patient themselves before co-signing another clinician’s assessment records.
Preserving the Integrity of the Medical Record
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Late entries must be made in accordance
with acceptable organizational standards.
Interventions defined in critical pathways, policies, procedures, protocols and care plans must be followed and documented.
If a standard recommendation is not followed, the reasons for this must be documented.
The patient’s response to interventions and the clinicians response to a worsening condition or worrisome indicator must be recorded promptly.
Preserving the Integrity of the Medical Record
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Doctor’s orders must be transcribed and carried out
as soon as possible;
Discharge instructions and the patient’s response to them must be documented;
All attempts to contact other health care professionals must be documented, including the time of the attempt or contact.
Do document any speculation about why another provider might have not responded promptly.
Preserving the Integrity of the Medical Record
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Common Allegations and Defenses
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Failure to Accurately Assess and Monitor
the Patient’s Condition
The Scenario
A patient was admitted to the hospital after sustaining serious injuries in a MVC. After 15 days in the ICU he was transferred to a private room in the med/surg unit.
At the time of transfer, the patient still had a tracheostomy because he was having difficulty breathing and was coughing up large amounts of thick yellow mucus.
The patient was unable to speak because of the tracheostomy.
That evening the patient had a slightly elevated temperature and a blood pressure of 210/100. His MD ordered an ABG and TNG paste. His nurse drew the ABG and applied the TNG paste, then left the patient alone.
Feeling anxious and short of breath, the patient attempted to summon the nurse with the call button but fell out of the bed reaching for the light.
He was found lying on the floor and was determined to have a hip fracture and SDH. He was transferred back to the ICU.
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Failure to properly monitor the patient’s care, treatment
and condition; Failure to monitor in a timely fashion; Failure to use the proper equipment to monitor the
patient; and Failure to document the monitoring.
As a nurse, you’re responsible for monitoring your patient’s condition to ensure that he receives proper care and treatment. Patients and their health care providers rely on you for this. Failure to monitor is a breach in the standard of nursing care that could expose you to liability.
Failure to Accurately Assess and Monitor the Patient’s Condition
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Failure to Notify the Health Care Provider
of Problems
The Scenario
Mrs. Cannon’s condition was worsening.
Her nurse called the Obstetrician several times to report the deterioration but failed to document her initial unsuccessful attempts to reach the physician.
In a deposition, the nurse testified that she’d called the physician as soon as she noted a change in Mrs. Cannon’s condition.
Her nursing documentation indicated that the patient’s condition changed for the worse at 1440, but an attempt to contact the patient’s physician wasn’t documented until 1545.
The Obstetrician corroborated the nurse’s testimony, but the jury refused to overlook the lack of documentation and awarded Baby Conner a large award for the damages the infant sustained.
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The duty to monitor the patient’s condition and
the duty to notify the patient’s health care provider of pertinent information go hand in hand.
The nurse is expected to use his/her judgment to determine when to notify the health care provider and what to communicate.
A failure to communicate that results in harm to the patient may result in liability for the nurse.
Failure to Notify the Health Care Provider of Problems
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When you make calls to relay urgent
information to the patient’s physician, make sure that you:
Relay all important information; Document the date and time of each attempt
made; (whether or not you reach the physician) The information communicated and the
physician’s response and directives; and Make sure the physician’s name is included in the
documentation. Do not refer to the physician simply as “the MD”.
Tip
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Failure to Follow Orders
The Scenario
Jeff Olsen was admitted to the hospital with a diagnosis of sinusitis and upper respiratory tract infection.
His MD ordered a CT scan and an opioid analgesic to alleviate his pain.
According the written order, Mr. Olsen was supposed to receive morphine Q4hrs. PRN.
Mr. Olsen’s MD also ordered Q4hr vital sign checks.
At midnight, his blood pressure was 90/60, down from 160/80 at 2000.
Because Mr. Olsen was still complaining of pain his nurse administered an additional dose of morphine only 2 ½ hours after the last dose without consulting the patient’s MD.
When the nurse checked on Mr. Olsen at 0400 ,
she found him in cardiac arrest.
Mr. Olsen was resuscitated but suffered severe hypoxic brain injury.
The hospital and nurse were sued.
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Failure to give nursing care as ordered can be a deviation
in the standard of care unless a legitimate concern about the appropriateness of the order, based upon an assessment, exist.
A plaintiff’s attorney will look at the health care provider’s orders to determine what time orders were written and at the nurse’s documentation to determine when they were transcribed and carried out.
You are responsible for carrying out orders in a timely fashion as well as, identifying inconsistent or inappropriate orders that could endanger the patient and intervening appropriately.
Failure to Follow Orders
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Make sure confusing, conflicting or inappropriate orders are clarified; and
Document that the orders have been properly authenticated before they are carried out.
Tip
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Failure to Follow Policies and Procedures
The Scenario
Kim Stevens, a patient in the ICU, went into cardiac arrest during the dayshift.
During a successful resuscitation effort, she was intubated.
Later in the day, after she’d been weaned and extubated, she suffered another cardiac arrest.
The crash cart that had been used for the earlier code had not been checked and restocked.
Because the appropriate sized laryngoscope blade wasn’t on the cart, the MD was not able to intubate her.
A nurse was able to get the blade from another cart but the delay caused severe brain damage.
Ms. Stevens died without regaining consciousness.
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Entity policies and procedures establish a standard of
care.
Any deviation from standards can result in liability exposure.
As demonstrated in the previous case, a patient was injured because the staff failed to follow an established protocol for checking and restocking the crash cart after every code.
Documenting nursing actions taken, shows that you followed the proper protocols and did what a reasonably prudent nurse would do.
Failure to Follow Policies and Procedures
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Failure to Delegate and SuperviseThe Scenario
A charge nurse asks a patient care technician (“PCT”) to perform a finger-stick on a patient with diabetes.
The PCT performed the test and documented the reading on the chart.
At the end of the shift, the charge nurse asked the PCT what the reading was and he said it was HHHH.
Alarmed, the charge nurse repeated the test and got a reading above 800mg/dl.
The patient was transferred to the ICU.
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Staff members who supervise others are expected to
know the skills, experience, and expertise of staff when making assignments.
Supervisory staff members are also expected to ensure that members of the staff have received proper orientation and training on equipment and supplies being used for patient care.
To avoid allegations related to improper delegation, the nurse must know which patient care needs can be delegated to an unlicensed staff member.
Failure to properly Delegate and Supervise
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Statute of Limitations
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Establish time limits within which a patient (or
someone acting on the patient’s behalf) must file a claim in response to an injury.
These time limits are defined by state law and vary from state to state.
In many states, the time limit is two years from the date of the injury or its discovery.
Statute of Limitations
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Missouri Revised Statutes § 516.105 Actions against
health care providers (medical malpractice). “…brought within two years from the date of
occurrence of the act of neglect complained of.
Exceptions: Retained foreign objects – two years from the date of
discovery (known or should have known).
Failure to inform – two years from the date of discovery (known or should have known).
Minors – until the minor’s twentieth birthday.
Statute of LimitationsMissouri
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Illinois Compiled Statutes 735 ILCS 5/2-1116
In Illinois, the state statute of limitations for filing medical malpractice lawsuits is generally 2 years from the date the negligent injury occurred.
Exceptions:
If, however, the injury was not immediately discovered, a lawsuit must then be filed within 2 years of when it was discovered or reasonably should have been discovered, but not longer than 4 years after the date of the injury.
The statutes of limitations for malpractice actions that result in death are called wrongful death suits, and they must be filed within 2 years of the date of death.
In the case of a minor under 18 years of age, the malpractice claim must be
filed within 8 years of the date or before their 22nd birthday.
Statute of LimitationsIllinois
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Instances do exist where it is not possible until considerable
time has passed to identify the cause of an injury or to discover that an injury has occurred.
Legislatures and courts have developed a series of rules to help determine when the actionable period should properly begin.
Depending on the circumstance, the time period may begin when: The injury occurred; The Injury was discovered; or At the end of treatment.
Statutes of Limitations
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A Patient’s attorney may file a claim
asking the court to “toll” – delay or suspend– the statute of limitations.
For Example: In injuries that occur in childhood or
during childbirth (which may result motor deficits or developmental delays), the statute of limitations may be tolled until the injured person reaches “legal age”.
The legal age is determined by state law.
In most states the legal age is 18 yrs., but may be 19yrs. or 21yrs. in others
Tolling the Statutes of Limitations
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Iyer PW, Camp NH. Overview of documentation. In: Iyer PW, Camp NH
editors. Nursing documentation: a nursing process approach. 4th ed. Flemington, NJ: Med League Support Services, 2005
American Nurses Association. Principles for documentation. Silver Spring, MD 2005 Nov.
American Nurses Association. Nursing: scope and standards of practice. Washington, DC, 2004.
Nursing 2010, volume 36, Number 1, p-56-64
Missouri Revised Statutes
Illinois Compiled Statutes
Acknowledgements
