Transcript Presentation Title

Legal Ramifications
to Documentation
Credibility is Key
Dallas, TX • November 2–4, 2012
Legal Ramifications in Documentation
Session Code: 104 Contact Hours: 0.8 CRNI Units: 2
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Handouts for this session are available online at www.ins1.org.
Session recordings will also be available post-meeting courtesy of
B.Braun Medical/Aesculap Academy.
As a courtesy to both presenters and attendees, please turn off all cell phones and refrain
from talking during the session.
Tonight’s Event:
Industrial Exhibition and Networking Reception
3:30-5:30pm
Dallas, TX • November 2–4, 2012
Credibility Is Key
• It is all about accuracy which then
bolsters credibility.
• You can provide excellent care, but if
documentation reflects otherwise,
people may not believe you provided
excellent care.
Dallas, TX • November 2–4, 2012
Characteristics of Good
Documentation:
• It exists (when applicable; you cannot
possibly document everything/all care
rendered to a patient)
• It can be found
• It is done in a timely manner
• It is factual
• It can be read
• The writer can be identified
• The contents are not offensive
Dallas, TX • November 2–4, 2012
The following should not be entered
into the medical record:
•
•
•
•
•
Assumptions
Incident/Occurrence/Event Reports
Criticism of other health care professionals
Criticism of the patient or family members
Judgmental and emotionally charged
comments
• Known inaccuracies or false statements
Dallas, TX • November 2–4, 2012
Examples: It Exists
• Legal Claim: Patient claimed that she had an
infiltration occur during the night that affected
her entire left arm: from wrist to axilla. She
stated she told the night shift nurse she had
pain in her arm and that the nurse replied
“you are going to have pain from your
surgery—try to get some sleep.” After
discharge, the patient alleged nerve damage
to her arm (she saw a neurologist who
examined her and wrote a report that the
patient suffered nerve damage from a
“compartment-like syndrome).”
Dallas, TX • November 2–4, 2012
It Exists, Cont.,
• Upon chart review: There was
documentation in the chart from the day shift
nurse that the IV was infiltrated, and that the
IV was removed. There was no
documentation that described how large the
infiltration was, or that a physician was
notified. In addition, there was no
documentation from the night shift nurse that
showed that she checked the IV site per the
policy. In essence, it appeared that the IV
was never checked.
• Claim settled.
Dallas, TX • November 2–4, 2012
It Exists: Photos and
Preservation of Evidence
Event reported via occurrence report:
“IV cath 20G inserted on 11/2 by IV Access
Team was pulled out by Step Down staff
because of difficulties with it. A piece of the
tip of cath was found to be missing. I was
called to check the situation and found by
comparing new cath with used one found that
a significant piece was missing . . . Pt.
asymptomatic . . . .”
Dallas, TX • November 2–4, 2012
It Exists: Photos and
Preservation of Evidence Cont.,
Dallas, TX • November 2–4, 2012
It Exists: Photos and
Preservation of Evidence Cont.,
Dallas, TX • November 2–4, 2012
It Exists: Photos and
Preservation of Evidence Cont.,
• It is important to save equipment and
disposables that are suspected of
malfunctioning
• Remove from patient care and send to
designated place in facility for safe-keeping
• Keep proper chain-of-custody
• Do not process or clean device (other than
grossly-soiled) because can hinder
investigation and testing
Dallas, TX • November 2–4, 2012
It Can be Found:
• If something is obliterated (such as blocked out with
pen or if correction fluid is used) OR if a page or
portions of a page are missing: then the jury may be
allowed to draw negative conclusions as to what the
information would have been.
• To clarify: the legal term for destroyed or missing
evidence is called SPOLIATION OF EVIDENCE. If a
safety checklist for insertion of a PICC or other type
of central line is missing from the chart, this can be
devastating for a case. It may be the one document
that could best prove that proper infection prevention
techniques were used.
Dallas, TX • November 2–4, 2012
It Can be Found, Cont.,
• Patient had a PICC (peripherally inserted central
catheter) line inserted by the IV Access Team nurse.
All infection prevention precautions were used. The
Central Line Safety Checklist was used and the nurse
documented all steps taken on the form, which
included hand washing, sterile technique, mask and
gown utilization, education to the patient and family
members, etc. Two days after the PICC insertion,
the patient became septic and it was determined the
patient had a CLABSI (Central Line Associated
Bloodstream Infection) from the PICC line. The
patient was critical for several days and died from
complications of the infection.
Dallas, TX • November 2–4, 2012
It Can be Found, Cont.,
• A Complaint is filed against the hospital and the main
theory is that the hospital (through nursing) failed to
utilize proper technique when inserting the PICC line.
The improper care of the patient caused the patient
to become septic and then have multi organ system
failure and expire.
• Upon receiving the Complaint, Risk Management
reviews the record and discovers that the Central
Line Safety Checklist is missing. There is no way to
prove that the nurse performed the required steps
prior to inserting the central line.
Dallas, TX • November 2–4, 2012
It Can be Found, Cont.,
• The jury may be instructed by the judge to infer that
the precautions/steps in the check list were not
performed (even if in fact, they were performed)!
• The idea is that if something has been intentionally
destroyed or removed, then the information on it must
have been damaging.
Dallas, TX • November 2–4, 2012
It Can be Found, Cont.,
• Even if there is no such instruction by the
judge, the credibility of the nurse or person
responsible for filing the checklist is now at
issue: the jury may wonder—if they are not
able to even keep the proper paperwork
around, then are they capable of giving
appropriate care to a patient? Credibility of
caregivers and expert witnesses is what wins
a case—who does the jury believe?
Dallas, TX • November 2–4, 2012
It’s Done in a Timely Manner:
• More on credibility: documentation involves not only
the content of the information that is written (the
substance of the facts documented), but also reflects
upon the credibility of the writer.
• How do we know that the person writing the
information is telling the truth? How do we know the
person testifying in a deposition or in court is telling
the truth?
• Timely documentation is essential to demonstrate (1)
exactly when events occurred and (2) the writer is
writing it accurately.
Dallas, TX • November 2–4, 2012
It’s Done in a Timely Manner,
Cont.,
• Late notes are not ideal, but as long as it is the truth
and would normally be something documented in the
Medical Record, then the note should be added.
THE CLOSER IN TIME TO THE EVENT, THE
BETTER--helps to prove credibility.
• Example: A patient was sent to a rehab facility
without a physician order. The next day, the nurse
notified the physician of the situation and obtained an
order at that time. The nurse did not write the order
in the chart to reflect the true date and time the
physician gave the order—it appeared that the order
was given the day before (prior to the patient leaving
the facility). It appears there was no error at all.
Dallas, TX • November 2–4, 2012
It’s Done in a Timely Manner,
Cont.,
• When entering late notes/entries, there
should always be two dates and two times:
1. The date and time the
assessment/order/intervention actually
occurred and
2. The date and time the note is actually
written (or electronically automatically
entered)
Dallas, TX • November 2–4, 2012
It’s Done in a Timely Manner,
Cont.,
• A patient had a complication with his IV site. Risk
Management was notified by the patient’s family
member about the complication. Risk did have an
occurrence report documenting the event, but the
event was not noted in the Medical Record. Upon
investigation, it was discovered that the charge nurse
assumed the primary nurse would document in the
medical record, and the primary nurse assumed the
charge nurse would document the event.
• The primary nurse added a late entry to the record:
“Late entry: date and time of entry is 4/2/12 at 1015
for date of event that occurred on 4/1/12 at 1300” . . .
Then she went on to accurately describe the event.
Dallas, TX • November 2–4, 2012
It’s Factual:
• Assumptions in the medical record (and
occurrence reports) can lead to
plaintiff’s verdicts:
• “The nurses gave the injection incorrectly—it
must have been given IM (intramuscularly)
instead of subcutaneously which then caused
the patient’s retroperitoneal bleed.” (Injection
technique had nothing to do with the patient
developing the bleeding).
Dallas, TX • November 2–4, 2012
It’s Factual, Cont.,
• “The extra dose of the beta blocker that
was given in error caused the patient’s
third degree heart block” (not true cause
of the heart block).
• “The physician should have ordered a
chest x ray after the central line was
inserted, if he had, then the patient
would not have died” (patient actually
died of unrelated cause).
Dallas, TX • November 2–4, 2012
It’s Factual, Cont.,
• Information that is kept in the patient’s record
should match the information that is given to
the patient, or next provider of care (physician
or long term or acute care facility).
– This assures accuracy of information (see
example on next page): Two Discharge
Medication Summaries: one was kept in the chart,
the other was sent on to the rehab facility. They
did not match: one shows that the patient was on
an additional antidepressant, the last date and
time medications were given and the nurse who
verified the form. The other is blank.
Dallas, TX • November 2–4, 2012
It’s Factual, Cont.,
Dallas, TX • November 2–4, 2012
It Can Be Read:
• The fact that an entry can be read relates to both the
substance of what is documented and the credibility
of the person documenting.
• There is not much worse than when you are sitting in
a deposition and the attorney asks for you to read
your notes and you reply, “I have no idea what that
says.”
• The jury may not think you are a credible person and
may think, “If the person cannot take the time to write
legibly, maybe he did not take the time to care for the
patient properly . . . .”
Dallas, TX • November 2–4, 2012
The Writer can be Identified:
• It should be clear as to who wrote the
information; if it is not clear, mistakes can be
made and assumptions that a different
person wrote the entry.
• EMR considerations: Beware of failure to log
into computers properly; it will automatically
show that you made the entries, when in fact
someone else delivered the care.
Dallas, TX • November 2–4, 2012
The Contents are not
Offensive:
• What is considered “offensive” may differ
from person to person. Be careful what you
write and put yourself in a juror’s shoes who
may be reading this four years from now:
– “The patient should have washed her own hair—
she is certainly capable—but refuses every time
saying ‘I cannot reach over my head.’ She can
certainly reach over her head when she wants to
look nice and braids or brushes her hair. It is
obvious she will only do things when she wants
to.”
Dallas, TX • November 2–4, 2012
The Contents are not
Offensive, Cont.,
• Instead: “Patient offered shampoo and towels to
wash hair. Patient states, ‘I cannot reach over my
head.’ Patient has demonstrated 3 times in the
last hour that she is able to reach over her head to
braid her hair and brush her hair for 4-5 minutes at
each time.”
• TRY NOT TO PROVIDE YOUR OWN
CONCLUSIONS; IT IS BEST TO DESCRIBE
SITUATION AS OBJECTIVELY AS POSSIBLE
(WITH SUBJECTIVE VERBATIM STATEMENTS
FROM THE PATIENT/FAMILY) SO THAT
READER CAN COME TO HIS OR HER OWN
CONCLUSION
Dallas, TX • November 2–4, 2012
The Contents are not
Offensive, Cont.,
• The question is not whether they are
offensive to the writer, but offensive to any
person who made read it at any time in the
future
• Examples:
– Email: “The patient is a raving lunatic!”
– Email: “Whew! That was a close one—we almost
really screwed this one up!”
Dallas, TX • November 2–4, 2012
The Contents are not
Offensive, Cont.,
– Occurrence Report: “Event likely to cause lawsuit
if not corrected.”
– Patient record: “Patient extubated without
weaning parameters!!!”
– Occurrence Report: “Nurse Smith should not be
changing a situation she knows nothing about!”
– Email: “The patient’s husband keeps bothering
me and I don’t know how to get him off of my
back!”
– Occurrence Report: “All the IV Nurses involved
should be disciplined; this was pure negligence!”
Dallas, TX • November 2–4, 2012
The Contents are not
Offensive, Cont.,
– Email: “This patient was a handful on a good day
. . . .”
– Adverse Drug Reaction Report: “Maybe the
Medication Oversight Committee should look
closer at these things before putting them on the
market (no antidote, bleeding management
protocols, etc.).”
– Social Networking Site: “Wanna talk about gross-saw the worst looking mutilation after medication
went into my patient’s arm the other day--must
have got him riled up ‘cause grandpa was feisty
today! Had to pop him one to get him to calm
down if you know what I mean!”
Dallas, TX • November 2–4, 2012
The Contents are not
Offensive, Cont.,
– Instant message via electronic medical
record (not saved in the medical record—
but beware of the “screen shot”):
-- “If you are nutty as a loon, Doctor Jack will see
you soon.”
--“Help me Obi-Wan-Cardiologist, you’re my only
hope.”
Dallas, TX • November 2–4, 2012
Error Correction
• Do not obliterate entries (with ink or correction
fluid/tape)
• DO NOT write a word, symbol or number and then
write on top of it
• Do not remove documents in the record that may be
erroneous, but have been reviewed/used to make
medical decisions—note that it is in error but allow it
to remain in the record. Place an explanation that
acknowledges the information is in error and what
occurred. Do not delete or destroy it.
Dallas, TX • November 2–4, 2012
Miscellaneous
Documentation Issues:
• Do not add assumptions, blame, or offensive
information in Occurrence Reports, emails, medical
records, text messages, voicemails or other forms of
electronic documentation. These are all “legal
documents/media” that can be brought into lawsuits
or investigations.
• Try to be sure the information that is in the
occurrence report is essentially the same information
that has been documented in the patient record. It
will detract from your credibility if there is little to no
documentation in the patient record, and there is an
occurrence report that has an entirely different factual
description.
Dallas, TX • November 2–4, 2012
Miscellaneous
Documentation Issues, Cont.,
• Do not make copies of chart entries, policies and
procedures, meeting minutes, contracts, etc. and
bring them home (unless authorized by your
employer). These documents are typically property
of the facility and can actually harm, rather than
protect you.
• Example: a former employee thought a lawsuit may
occur. He wanted to protect a colleague, so while he
still worked at the hospital, he copied meeting
minutes, contracts, notes, letters and emails and kept
them at his home. Four years later, he was in a
different state, but had to appear for a deposition for
the court case. He brought all of the above
documents with him.
Dallas, TX • November 2–4, 2012
Miscellaneous
Documentation Issues, Cont.,
• Most of the documents could have been protected by
the defense attorney. He ended up actually harming
his colleague’s case by doing this.
• Do not make notes of an event for your personal use.
•
Be careful of keeping a diary at home that accounts
for your day’s work. Dates and events can be lined
up easily and the information may contain PHI
(protected health information) and seen as a violation
of privacy and possibly used against you in a lawsuit
or other type of investigation.
Dallas, TX • November 2–4, 2012
Miscellaneous
Documentation Issues, Cont.,
Dallas, TX • November 2–4, 2012
Miscellaneous
Documentation Issues, Cont.,
Dallas, TX • November 2–4, 2012