Transcript iv mandatory and permissive disclosure without consent

Legal Aspects of Electronic Medical
Records
 Elizabeth Bradley
 This presentation is not the opinion of Palmetto Health and
Palmetto Health is not responsible or liable for any damages
or injuries you may receive as the result of any reliance on
this presentation. Each situation is different therefore you
should contact your attorney for specific questions.
Malpractice Suits Against Nurses on the
Rise
 Medical malpractice payments on behalf of nurses nearly doubled
from 307 to 586 in 2005. About two-thirds of these were against
non-advanced practice RNs.
 Thirty years ago it was almost unheard of for a nurse to be named
in a lawsuit.
 More and more nurses are getting sued individually. Rita Kae
Restrepo, RN, BS, SPAN, San Francisco General Hospital, The
Nursing Spectrum August 27, 2007
 Nursing responsibilities have also expanded. Busy physicians who
spend less time at the bedside rely more on nurses to be their eyes
and ears. Hospitalists do not know the patient and change shifts.
Have to rely on nurses.
Biggest Reason For Mistakes and Lawsuits
Can you guess what this is?
Communication
What does this include?
Documentation, Handoffs, Keeping Patient, Family,
Physician Informed.
LAWSUITS AND NURSES
 Lawsuits that involve nurses are usually civil cases that
try to prove negligence and medical malpractice.
 When you inadvertently fail to document that you
provided the care as specifically outlined by an order or
standards of care, you could be held negligent.
 When you fail to document that you notified a physician
of change in patient status you could be held negligent.
Anatomy of a Medical Malpractice Lawsuit
 In a medical malpractice action, a plaintiff must prove the
following to establish a case:
 1. Plaintiff (patient or patient’s family) files a complaint.
Complaint states that the facts of the cases and allegations
regarding care or lack of care which caused harm to the
patient.
 Must show the generally accepted standards of procedure or
practice that would be followed by the average competent
practitioner under the same or similar circumstances
Evidence: (expert, policies and procedures)
Proving Medical Malpractice
 2. That the defendant practitioner departed from these
standards. (evidence: medical records or witnesses)
 3. The departure was the proximate cause or direct reason
for the alleged injuries or damages. (evidence: medical
expert)
 Hospital may qualify for caps on the liability if a charitable or
state entity.
 Statute of limitations
Recognize The Importance of Medical
Records Here?
WITNESSES
 Plaintiff will have fact witnesses that will include family members
and possibly the patient. They will have detailed memories of the
patient stay and events.
 Defendants will have to use their documentation.
 Defendants will also be witnesses. The doctors, nurses and staff
involved in providing patient care will be witnesses in the trial and
in depositions.
 In many lawsuits related to medical errors or malpractice, a
medical or nursing expert will be retained to review the
medical record and render an opinion as to whether a
provider, the staff or the facility met the acceptable standard
of care. Consistent, concise, and organized documentation is
crucial to the expert’s ability to make such determinations.
So, if no documentation regarding care or observations than
hard to prove care was provided.
PUNITIVE DAMAGES
 Grossly negligent: conduct or a failure to act that is so
reckless that it demonstrates a substantial lack of
concern for whether an injury will result.
 In order to receive punitive damages the Plaintiff must
show that hospital or nurse was: reckless, willful or
grossly negligent.
Medical Record Is The Most Important Evidence To
Prove Nurse Met Standard Of Care
 Charting is the most important evidence to prove nurse met
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standard of nursing care.
With the introduction of electronic medical records there is a loss
of the “story” of the patient’s treatment.
Nurse will rely on these records to demonstrate the care that was
provided.
This information may be introduced as evidence in court, hearing
or deposition.
Nurse will also rely on these records since may not remember the
situation.
Issues with Electronic Medical Records
Easier to make mistakes.
Loss of descriptive documenting.
Too much unnecessary information. Important information lost.
Once an error is in the system it perpetuates itself through the network.
Networks do not speak the same language.
Problems with alerts in medical record. Do not capture issues.
Work arounds cause errors. Defeat purpose.
Medical guidelines and best practices are not updated automatically.
Time synchronization.
Check boxes don’t reflect patient condition or patient care.
Clinical notes do not highlight the most important patient issues.
Medical guidelines and best practices not updated automatically.
Alerts turned off.
Issues Continued
 Information does not always automatically flow to entire
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record.
Audit trails have shown that nurses and physicians are not
reviewing all of the data.
Critical information regarding x-rays, labs and medication
are not completed properly.
“Cutting and pasting” of medical records is a potential
danger.
Risks of software bugs, computer shutdowns and user errors.
Capture Information In Free Text
 Adds to the accuracy of the record.
 Often, the "drop box" does not provide an adequate selection to describe the history or
physical.
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In anesthesia cases, for instance, the EHR drop box may allow only a description of
"awake," "drowsy," or "unresponsive." These choices, may not give an accurate picture
of the patient. If a patient is technically awake but not properly responsive, that should
be documented.
 Similarly, there are times when the general description of how a patient is looking can be
informative and integral to the physician formulating an assessment.
 Describe the care you are providing patient and the reasons you are providing this care.
 Describe everyone contacted and all follow up on tests.
Issues With EHR
 There is a risk of error in checking preset indicators.
 Preset indicators may fail to adequately describe situation.
 Electronic medical records have better legibility.
 Concern regarding labs and follow up.
 One of the biggest concerns regarding EHR errors relates to
default values. A recent advisory released by Pennsylvania
Patient Safety Advisory in September 2013 states that this is a
serious issue. In the advisory analysts identified 324 events
related to software defaults, 200 related to wrong time
errors and 71 related to wrong dose errors. HCPRO
January 14, Volume 15, Issue 1.
Journal of American Medical
Informatics Association (JAMIA)
JAMIA convened a task force in 2011 to review the way health
IT systems are designed.
Dr. Blackford Middleton, corporate director of clinical
informatics research and development at Partners Healthcare
System and 2013 AMIA chair-elect, told InformationWeek
Healthcare. “We’ve been installing it and not measuring it like
we would any other intervention.”
What happens to the errors in the electronic medical record?
There is no way to correct these errors they may even get
forwarded on in the system.
Medical Errors In Hospitals
 1. Medical errors happen when something that was planned as a
part of medical care does not work out, or when the wrong plan
was used in the first place.
 2. A 1999 report by the Institute of Medicine estimates that as
many as 44,000 to 98,000 people die in US hospitals each year as
a result of medical errors.
 3. Errors in health care have been estimated to cost more than $5
million per year for a hospital.
 4. More people die as a result of a hospital error than in a car
accident.
 Reliance
by other care givers. Remember
communication.
 History
 Trend
 Part of puzzle in helping patient.
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Review each entry before completing.
 Type slower. Read carefully. Check entries.
 Example. Million dollar check.
 Observe patient carefully before entering
information into computer.
 “No change” is not descriptive nor does it meet
the goal of documenting.
 Charting should describe patient care.
 Charting should describe care provided.
 As patient’s condition changes, nurses should
change plan of care.
 Changes should be reflected in charting.
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1. Check that you have the correct chart before you begin entering.
2. Check to make sure you have the right patient.
3. DOCUMENT ACCURATE INFORMATION. REVIEW THE INFORMATION THAT
YOU HAVE JUST ENTERED TO MAKE SURE IT IS CORRECT BEFORE SIGNING
YOUR ENTRY.
4. Chart precautions or preventive measures used and why. (Bed rails)
5. RECORD each phone call exact time, message and response. (DO ALL
THREE)
6. Chart patient care at the TIME you provide it.
7. If you remember something later-document as late entry and include
date and time.
8. Document whole story. Facts, what you see, smell and hear.
9. Do not chart “no change”, “good morning”, “usual day”, “bad night”
Should be your documentary of the patients care while with you.
Remember you are a team and the team needs play book…
CHART VITALS- Make sure accurate. If concerning REPORT IMMEDIATELY.
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1. Do not-do not chart care ahead of time. Facts may
change and it may never happen. This is considered fraud.
2. If you are charting someone else’s observations note
that.
3. Don’t use incorrect abbreviations.
4. Don’t chart symptom without stating what you did about
this.
5. Don’t write imprecise descriptions: leg tingling, large
amount of blood
6. DO NOT ALTER – If you have to make a change document
as a late entry and explain.
7. Don’t wait until end of shift to chart.
DO NOT DOCUMENT CARE THAT YOU HAVE NOT GIVEN AS
BEING DONE FOR PATIENT EVER!!!! THIS IS FRAUD.
CHECK PATIENT NAME!!! SAY THEIR NAME
LISTEN TO PATIENT QUESTIONS OR CONCERNS
READ ANY PAPERWORK THEY FILL OUT
ALLERGIES?
The medical and nursing admission assessments provide a
overview of the patients status at the time of admission.
Talk to the patient. What is the complaint, concern, history.
Listen to the patient. The patient or family member can
tell you what you need to know about the patient.
Remember to COMMUNICATE.
Report what the patient/family say-COULD BE VERY
IMPORTANT TO CARE (“I forgot to tell you that I do not
know when my blood sugar drops at home…My wife finds
me confused when this happens.” NEED YOUR HELP TO DO
ALL OF THIS
 Look
at patient’s risk for developing a
pressure ulcer is important to do on
admission.
 Look at: nutrition, moisture,
incontinence, mobility and sensory
perception, complaints
 Review for a follow-up when changes
occur or transfer to another unit.
 REPORT CHANGES
 Documentation
should continue consistently
through the patients stay. If the
documentation is inconsistent then it is not
effective or valuable at all.
 Continue to treat, take vitals and document.
Concerns regarding “no change.”
 If vitals seem incorrect, concerning or
alarming. Recheck. Get assistance.
 Reports
patient complaints
 If patient is experiencing for example:
numbness and tingling, document and advise
physician.
 Later, is it worse, better?
 Input, output?
 Follow patient and document plan of care as
patient’s status changes.
 Must
document action taken to address
abnormal condition:
 Physician contacted: time, physician
spoken to, physician’s orders
 If unable to reach physician-document
this also. Document every call.
 Document all changes in vital signs
whether dramatic or not.
 Every abnormality should be recorded
until a satisfactory result is obtained.
 Why
do you think
they are called “vital
signs”?
 Review of charts
shows lack of
documentation of
vital signs. Or
incorrect vital signs.
 Call
for help-rapid
response team.
 Contact physician.
 Don’t just watch bad
vital signs or vital
signs that are not
improving. Trying to
tell you something.
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When there is a observation of a patient’s abnormal vital
signs, must notify the physician when necessary.
Fever
Blood pressure
Respiration
Pain
Numbness, lack of feeling
Failure to void
Vomiting
Examine and document.
CASE OF MISSING VITALS NURSE TECHNICIAN FOUND
NEGLIGENT BY JURY
 Although
this can be extremely difficult if
the patient is in a crisis and needs to be
stabilized. Many legal claims and peer or
professional review will focus on the notes
taken during the code.
 Length of time.
 What was done.
 Who was contacted.
 Who participated.
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ROLE YOU PLAY: NURSE’S REPORT TO EACH OTHER AT
CHANGE OF SHIFT. NURSES NEED TO COMMUNICATE
REGARDING CARE TO BE GIVEN.
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Situation: patient name, room number, admission date,
physician
Background: Admitting diagnosis, surgery, significant past
history, allergies, code status, DNR, procedures done in 24
hrs.
Assessment: Biophysical and or psychosocial assessment,
abnormal vital signs, pain score, what to manage pain?
Recommendations: Concerned about? Watching? Need to
do? Warning signs?/
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Give important information to receiving
nurse upon transfer.
 2. What are we concerned about?
Monitoring? Meds? Vitals?
 3. Patient care should not deteriorate when
there is a hand off.
 4. This is a crucial time in a patient’s
treatment.
Document patient’s
condition at
discharge.
 Document
information given to
patient and patient’s
family regarding care
and concerns.
 Document medication
and equipment
information.
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Is the patient still ready for
discharge?
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Teach back method.
Do they understand.
If not then notify the physician.
 Many
cases over discharge issues.
 1. What was patient’s condition at
discharge?
 2. How recent were vitals taken? Any
relapse?
 3. Discharge instructions given?
 4. Patient understand? Patient concerns.
 5. Discharge instructions workable?
 6. Any equipment needed?
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Co-workers
 2. Physician
 3. Patient
 4. You!
 Communication should be with ?
 1. Co-workers
 2. Physician
 3. Patient
 Essential
to good patient care.
 Think documentary. Why?
 1. It acts as a communication tool that
fosters the coordination of care by
multiple care givers that VERY BUSY.
 2. It is a historical record used to
determine the what is happening to the
patient, symptoms, medications, danger
areas.
 3. The medical record is evidence.
 High
profile medical errors such as operating
on the wrong body part or receiving a
mistaken dose of drugs should take a back
seat to a far more common and insidious
mistake, a new report reveals.
 The most common mistake is failure to
rescue.
 Will you rescue the patient? Will you listen
to the family? Will you be the one?
Between 2004 and 2006, failure to rescue
claimed more than 188,000 lives, amounting to
128 deaths for every 1,000 patients at risk of
complications.
 Another report states that 61,000 people die a
year from failure to rescue.
 What to look for: CHANGES IN VITAL SIGNS,
respiratory failure, pulmonary embolism, deep
vein thrombosis, sepsis and abdominal wounds.
 See here you are the key! You spend more time
with the patient than anyone else. You are the
first to notice these changes.
 You are the life guard!
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Failure to rescue is not whether you get the wrong IV in
the first place. It is how fast do people pick up that you
are going south and turn it around.
Watch them die.
Most common areas of mistake:
just coming from surgery
taking pain medications
Watch for subtle signs of change: get family to help
(shortness of breath, nausea, delirium) VITAL SIGNS
CHANGES
Condition H
Moved from unit to unit. (DANGER)
Blood Pressure
You see the patient
more than anyone.
 Direct contact.
 You see vital signs and
changes.
 Report concerns.
 Communicate
concerns. Part of
the rescue team.
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Blow the whistle.
Rescue the patient.
 The
patient complained of nausea,
dizziness, abdominal pain, and itchy skin
shortly after receiving his first 100 mg
dose of Macrodantin. His nurse was not
concerned, though. And it was eveningthey would wait until tomorrow. By
morning, after two more doses of the
medication, he was vomiting, had a high
fever and early symptoms of shock.
 The fever was not correctly documented.
 Nurse monitored the patient’s response,
but the nurse tech failed to follow-up on
the negative reaction and was found
negligent.
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This patient comes out of surgery and the nurse
notices heavy drainage from the surgical wound.
Changes dressing. Nurse fails to document that
she changed dressing and her assessment of
heavy drainage before she leaves. The next
nurse comes in and notices heavy drainage from
the wound. She checks the nurse notes and finds
no evidence that the dressing was changed. She
considers the amount of drainage normal for the
period of hours. Remember: she did not know
about prior dressing change. Next nurse tech
comes in and does the same thing. Patient
codes. No one knew that patient was getting
more serious because no one charted. Hospital
sued and nurses and nurse technicians found
negligent.
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Bed rail down, high-risk patient got out of bed and fell,
court finds negligence. Bed rail was to be up.
Patient has Alzheimer's and is a strong risk for falling. The
hospital had a fall injury prevention protocol.
The protocol required the hospital to assess and re-assess
the patient’s physical and mental condition.
A nurse found the patient face down on the floor in the
hallway at 7:00 a.m. One bed rail was down.
When a health care provider disregards or intentionally
violates the institution’s own internal patient-care
protocols it is evidence of negligence. Nurse found
negligent.
No documentation to provide otherwise.
Jury finds no evidence of negligence.
 THE MOST IMPORTANT FACTOR INFLUENCING THE
COURT WAS THE NURSING DOCUMENTATION.
 Nurse carefully assessed the patient’s skin
integrity and documented.
 Care plan was documented. Documented turns
every two hours.
 Nutritional assessments and flow charting
documented.
 Carefully documented progression of skin lesions
and noted they called in physician. Documented
interaction with family.
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Elderly patient was admitted to the hospital for numerous
medical problems. Her right knee had been amputated and
she was admitted for her dialysis treatments for end-stage
renal disease.
Placed near nurses station in a chair for observation after
dialysis. Unrestrained she fell. After hip surgery she
developed a bed sore. Stage III decubitus. She eventually
passed away.
Family sued for nursing negligence.
Verdict was for negligence leading to her fall and negligence
leading to her skin breakdown.
As a general rule, the courts will accept testimony about a
person’s habits or general practice. A nurse can testify that
she or he out of habit turns a patient every two hours.
However, in this case the medical record did not reflect this.
The deficiency in the charting supported the families
allegations. Chart also pointed to a glaring two day delay in
getting the mattress the physician ordered and in handling the
skin breakdown. Further, no fall assessment was done/ no
monitoring of patient in the chair.
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2/5 2 small skin tears on the sacral area which were
treated with duoderm
2/11 1.5 x 1.5 non-stageable ulcer either stage III or IV
with yellow necrotic tissue
2/19 wound size of dime
2/20 wound size of nickel/ snack
2/21 2.4 x 2.4 non-stageable with yellow necrotic tissue
2/27 new Tegasorb applied / snack
3/2 wound care with brown foul smelling drainage
3/5 11.5 x 6.5 non-stageable- soft brown necrotic tissuefoul smelling / snack
3/7 surgical debridement at bedside by surgeon bone
involvement
Documentation regarding incontinence on admission and then no
further documentation.
 Frequency
of documentation.
 Notification of physician?
 Accurate measurements?
 Treatment and plan?
 Notification of skin care team?
 Dietary plan?
 What patient ate.
 Incontinence.
 Joint
Commission and South Carolina Law
have provided several rules, regulations
and statutes regarding documentation in
the medical record. Hospitals have
policies and procedures regarding all
aspects of documentation and patient
care. Be familiar with these. It is
required. When you are deposed or go to
court you will be asked about these
policies and procedures.
 Provides
in
pertinent part that
medical records
contain: Adequate
and complete
medical records
shall be written for
ALL patients
admitted to the
hospital and
newborns
delivered.
 All
notes shall be
legibly written or
typed and signed. A
minimum of
medical records
shall include the
following
information:
 Admission
record.
 History and
physical w/in 48
hours.
 Provisional or
working diagnosis.
 Vital signs.
 Pre-operative
diagnosis.
 Medical Treatment
 Complete
surgical
record: technique,
findings, statement
of tissue, organs
removed, postoperative
diagnosis.
 Report of
anesthesia
 Review
each entry before completing.
 Type slower.
 Check name, observe patient carefully
before entering information into computer.
Speak with patient and family.
 Do not use “No change”
 Charting has to describe patient care.
 As patient’s condition changes, nurses should
change plan of care.
 Plan of care should be reflected in charting.