Hartzell v. City of Warren illustrates how the medical record can be a powerful and persuasive multipurpose document. The medical record is used for: (slide info)I will be focusing on its role in lawsuits alleging professional negligence.
In a lawsuit alleging professional negligence, the plaintiff has the burden of proof.This means that to prevail (win) the plaintiff must prove all four the elements of negligence.
Knowing what the plaintiff’s attorney would look for in the medical record will help you make good decisions about how and what to document.
This means that to prevail, the plaintiff must prove all four of the following elements
In such a case the plaintiff’s attorney would request copies of the facility’s policies and procedures to determine whether pertinent policies were followed.
Know and follow the state’s Nurse Practice Act about delegation and the skill set of the person who will be performing the task.
Lisa D. Shannon RN, JDCorporate Manager, Clinical Risk ServicesCorporate Risk Services
Seven-thirty in the morning the phone rings on thenursing division, its Risk Management on the line, askingyou to stop by the Department as soon as possible; You finish report, assess your patient, find someone tocover for you and walk over to the Risk ManagementDepartment and discover… YOU HAVE BEEN SERVED AS A DEFENDANTIN A LAWSUIT!2Imagine this…
No matter how skilled you are, poor nursingdocumentation will undermine yourcredibility if you‟re ever involved in alawsuit.3But, I‟m a Great Nurse!
Our Focus Today…Practical Guidelines that will not only improve patient care, buthelp shield you from legal fallout if something does go wrong.4
Concepts The Purpose of theMedical Record Standards of Care Finding Flaws in theMedical Record Avoiding DocumentationPitfalls Preserving the MedicalRecord Common Allegations andDefenses Statutes of Limitations5
Nurse and Physician working in a correctional institution were accused ofprofessional negligence. In the lawsuit, representatives from the inmate‟s estate alleged thatHartzell (“the inmate”) had been denied proper medical care, includingmedication, an omission that allegedly caused his death. After reviewing the evidence, the court concluded that Hartzell was notdenied 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 itsclaims against the nurse or the doctor accused. 7Hartzell v. City of Warren, et, al.
Substantiating the health condition, illness, or presenting concernof a patient; Communicating among health care professionals; Recording the patient‟s response to care; Auditing care for quality improvement, third-party payment, andgovernmental and regulatory purposes; Conducting research; and Resolving competency, disability, guardianship, and other legalissues.8Purposes of the Medical Record
Conduct that falls below the standards ofbehavior established by law for theprotection of others against unreasonablerisk of harm.A person has acted negligently if he or shehas departed from the conduct expectedof a reasonably prudent person actingunder similar circumstances.10Negligence
The failure to provide theprevailing standard of care to apatient, which results in injury,damage, or loss to the patient.11Professional Negligence
Duty to the plaintiff existed. Duty is established when ahealth care professional assumes care of a patient underher scope of practice, licensure, and employment. Breach, the standard of care was breached. The standardof care is based on what a reasonably prudentprofessional with similar expertise and responsibilitieswould have done under similar circumstances. Damages, The patient was injured. The injury was caused by the breach in the standard ofcare (Proximate Cause).12Elements of Negligence
The person filing a lawsuit is thePlaintiff.The person defending themselves ortheir organization from the lawsuit isthe Defendant.13Plaintiff v. Defendant
A duty placed upon a civil or criminaldefendant to prove or disprove adisputed fact.14Burden of Proof
So, What‟s the Plaintiff‟sAttorney Looking For?15
The plaintiff has the burden of proof. If he prevails, he‟s awarded damages based on hiseconomic losses and possibly noneconomic losses. In professional negligence cases expert witness testimonyis required. State law determines who can testify as an expert. In most states, Good Samaritan laws shield health care professionals from liabilityif they volunteer to help someone in good faith in an emergency outside the scopeof their employment. 16Lawsuit Alleging ProfessionalNegligence
Defines what is accepted as „reasonable‟ under thecircumstances. Defines the degree of skill care, and judgment used by anordinary prudent health care provider under similarcircumstances. Standards of Care are determined by state Nurse PracticeActs, state and federal regulatory agencies, oversightagencies (such as Joint Commission), policy and positionstatements by specialty societies, health care institutionsand organizations, current literature, among othersources.18Standards of Care
Inconsistencies, inaccuracies, or voids in the medicalrecord are Red Flags to the plaintiff‟s attorney. These red flags may assist the plaintiff‟s attorney inproving her case.20Flaws in the Medical Record
An attorney seeking to bring a professional negligence claimexamines the medical record for evidence that will help her proveher 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.21Looking for Red Flags in theMedical Record
Pages without any patient identification – no patient stamp; Notes written on the wrong date, or times that don‟t correlatewith 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 thechronology of the patient‟s medical course; or Inappropriate comments or healthcare provider infighting in themedical record.22Red FlagsThese examples are sure to catch her eye!
Avoiding DocumentationPitfallsBase your documentation on objective assessment findings; andDocument as close to the intervention as possible.23
Make sure no mysterious gaps in the medical recordwould permit someone to speculate about whathappened. If paper charting, don‟t leave spaces so you can addmore documentation later. This type of “squeezed in” charting could appear as acover-up.24Documentation PitfallsGaps
Never chart to cover up an incident or documenthealth care that wasn‟t provided. Failing to accurately and completely document theevents of an adverse incident and subsequenttreatment can result in an unsolved mystery. The plaintiff‟s attorney will try to solve this mysteryby creating a theory about what happened. Without solid documentation, the attorney‟s theorymay be difficult to refute. 25Documentation PitfallsGaps
Document all medically relevant facts related to anincident in the medical record. Document the investigation of an incident in theEVENT REPORT!Do not document that an event reporthas been filed in the patient‟s medicalrecord.26Tip
Inappropriate comments about a patient or labeling thepatient or his behavior suggests that you were biasedagainst him/her. These terms might suggest that you didn‟t provide thepatient with the same level of care that you gave to otherpatients who were more agreeable; and Could lead to allegations of professional negligence ordefamation.27Documentation PitfallsBias
Keep your personal opinion out of the record. You should factually and objectively document thepatient‟s behavior (including any failure to adhereto treatment) if it‟s relevant to the patient‟s care. This could help your lawyer demonstrate that thepatient contributed to his own problems while youmaintained a high standard of nursing care.28Documentation PitfallsBias
When documenting make sure you are following your entity‟spolicies and procedures. Deviating from the established entity policies and procedures mayallow the plaintiff‟s attorney to create an unflattering scenario forthe jury. For Example: The entity‟s policy dictates that a complete nursing assessment will bedocumented Q8 hours, however, nursing staff only completes acomplete assessment Q12 hours. This finding can be interpreted as a deviation from the entity‟s standardof care.29Documentation PitfallsDeviation from Policies and Procedures
Preserving the Integrity oftheMedical Record30
Accurate and complete patient information must be entered on allpaper and electronic documents; EKGs, radiology, fetal monitoring strips and other test reports mustbe properly labeled, sequentially listed and kept with the medicalrecord; 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 patientthemselves before co-signing another clinician‟s assessment records. 31Preserving the Integrity of theMedical Record
Late entries must be made in accordance withacceptable organizational standards. Interventions defined in criticalpathways, policies, procedures, protocols andcare plans must be followed anddocumented. If a standard recommendation is notfollowed, the reasons for this must bedocumented. The patient‟s response to interventions andthe clinicians response to a worsening32Preserving the Integrity of theMedical Record
Doctor‟s orders must be transcribed and carried out assoon as possible; Discharge instructions and the patient‟s response to themmust be documented; All attempts to contact other health care professionalsmust be documented, including the time of the attempt orcontact. Do document any speculation about why another providermight have not responded promptly. 33Preserving the Integrity of theMedical Record
Failure to AccuratelyAssess and Monitor thePatient‟s ConditionThe ScenarioA patient was admitted to the hospital aftersustaining serious injuries in a MVC. After 15days in the ICU he was transferred to a privateroom in the med/surg unit.At the time of transfer, the patient still had atracheostomy because he was having difficultybreathing and was coughing up large amountsof thick yellow mucus.The patient was unable to speak because of thetracheostomy.That evening the patient had a slightlyelevated temperature and a blood pressure of210/100. His MD ordered an ABG and TNGpaste. His nurse drew the ABG and appliedthe TNG paste, then left the patient alone.Feeling anxious and short of breath, thepatient attempted to summon the nurse withthe call button but fell out of the bed reachingfor the light.He was found lying on the floor and wasdetermined to have a hip fracture and SDH.He was transferred back to the ICU.35
Failure to properly monitor the patient‟s care, treatment andcondition; 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‟scondition to ensure that he receives proper care andtreatment. Patients and their health care providers rely onyou for this. Failure to monitor is a breach in the standard ofnursing care that could expose you to liability.36Failure to Accurately Assess and Monitorthe Patient‟s Condition
Failure to Notify theHealth Care Provider ofProblemsThe ScenarioMrs. Cannon‟s condition was worsening.Her nurse called the Obstetrician severaltimes to report the deterioration but failedto document her initial unsuccessfulattempts to reach the physician.In a deposition, the nurse testified thatshe‟d called the physician as soon as shenoted a change in Mrs. Cannon‟scondition.Her nursing documentation indicatedthat the patient‟s condition changed forthe worse at 1440, but an attempt tocontact the patient‟s physician wasn‟tdocumented until 1545.The Obstetrician corroborated the nurse‟stestimony, but the jury refused tooverlook the lack of documentation andawarded Baby Conner a large award forthe damages the infant sustained.37
The duty to monitor the patient‟s condition and theduty to notify the patient‟s health care provider ofpertinent information go hand in hand. The nurse is expected to use his/her judgment todetermine when to notify the health care providerand what to communicate. A failure to communicate that results in harm to thepatient may result in liability for the nurse.38Failure to Notify the Health CareProvider of Problems
When you make calls to relay urgent information tothe 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‟sresponse and directives; and Make sure the physician‟s name is included in thedocumentation. Do not refer to the physician simply as “the MD”. 39Tip
Failure to FollowOrdersThe Scenario Jeff Olsen was admitted to the hospital with a diagnosisof sinusitis and upper respiratory tract infection. His MD ordered a CT scan and an opioid analgesic toalleviate his pain. According the written order, Mr. Olsen was supposed toreceive morphine Q4hrs. PRN. Mr. Olsen‟s MD also ordered Q4hr vital sign checks. At midnight, his blood pressure was 90/60, down from160/80 at 2000. Because Mr. Olsen was still complaining of pain his nurseadministered an additional dose of morphine only 2 ½hours after the last dose without consulting the patient‟sMD. When the nurse checked on Mr. Olsen at 0400 , she foundhim in cardiac arrest. Mr. Olsen was resuscitated but suffered severe hypoxicbrain injury. The hospital and nurse were sued.40
Failure to give nursing care as ordered can be a deviationin the standard of care unless a legitimate concern aboutthe appropriateness of the order, based upon anassessment, exist. A plaintiff‟s attorney will look at the health careprovider‟s orders to determine what time orders werewritten and at the nurse‟s documentation to determinewhen they were transcribed and carried out. You are responsible for carrying out orders in a timelyfashion as well as, identifying inconsistent orinappropriate orders that could endanger the patient andintervening appropriately.41Failure to Follow Orders
Make sure confusing, conflicting or inappropriateorders are clarified; and Document that the orders have been properlyauthenticated before they are carried out.42Tip
Failure to FollowPolicies and ProceduresThe Scenario Kim Stevens, a patient in the ICU, wentinto cardiac arrest during the dayshift. During a successful resuscitation effort,she was intubated. Later in the day, after she‟d been weanedand extubated, she suffered anothercardiac arrest. The crash cart that had been used for theearlier code had not been checked andrestocked. Because the appropriate sizedlaryngoscope blade wasn‟t on the cart, theMD was not able to intubate her. A nurse was able to get the blade fromanother cart but the delay caused severebrain damage. Ms. Stevens died without regainingconsciousness. 43
Entity policies and procedures establish a standard ofcare. Any deviation from standards can result in liabilityexposure. As demonstrated in the previous case, a patient wasinjured because the staff failed to follow an establishedprotocol for checking and restocking the crash cart afterevery code. Documenting nursing actions taken, shows that youfollowed the proper protocols and did what a reasonablyprudent nurse would do. 44Failure to Follow Policies andProcedures
Failure to Delegate andSuperviseThe Scenario A charge nurse asks a patient caretechnician (“PCT”) to perform afinger-stick on a patient withdiabetes. The PCT performed the test anddocumented the reading on thechart. At the end of the shift, the chargenurse asked the PCT what thereading was and he said it wasHHHH. Alarmed, the charge nurserepeated the test and got a readingabove 800mg/dl. The patient was transferred to theICU.45
Staff members who supervise others are expected to know theskills, experience, and expertise of staff when makingassignments. Supervisory staff members are also expected to ensure thatmembers of the staff have received proper orientation andtraining on equipment and supplies being used for patientcare. To avoid allegations related to improper delegation, the nursemust know which patient care needs can be delegated to anunlicensed staff member.46Failure to properly Delegate andSupervise
Establish time limits within which a patient (orsomeone acting on the patient‟s behalf) must file aclaim in response to an injury. These time limits are defined by state law and varyfrom state to state. In many states, the time limit is two years from thedate of the injury or its discovery.48Statute of Limitations
Missouri Revised Statutes § 516.105 Actions against healthcare providers (medical malpractice). “…brought within two years from the date of occurrence ofthe act of neglect complained of. Exceptions: Retained foreign objects – two years from the date ofdiscovery (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. 49Statute of LimitationsMissouri
Illinois Compiled Statutes 735 ILCS 5/2-1116 In Illinois, the state statute of limitations for filing medical malpracticelawsuits is generally 2 years from the date the negligent injury occurred. Exceptions: If, however, the injury was not immediately discovered, a lawsuit must then befiled within 2 years of when it was discovered or reasonably should have beendiscovered, but not longer than 4 years after the date of the injury. The statutes of limitations for malpractice actions that result in death are calledwrongful 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 filedwithin 8 years of the date or before their 22nd birthday.50Statute of LimitationsIllinois
Instances do exist where it is not possible until considerabletime has passed to identify the cause of an injury or to discoverthat an injury has occurred. Legislatures and courts have developed a series of rules to helpdetermine when the actionable period should properly begin. Depending on the circumstance, the time period may beginwhen: The injury occurred; The Injury was discovered; or At the end of treatment.51Statutes of Limitations
A Patient‟s attorney may file a claimasking the court to “toll” – delay orsuspend– the statute of limitations. For Example: In injuries that occur in childhood orduring childbirth (which may resultmotor deficits or developmental delays),the statute of limitations may be tolleduntil the injured person reaches “legalage”. The legal age is determined by state law. In most states the legal age is 18 yrs., butmay be 19yrs. or 21yrs. in others52Tolling the Statutes ofLimitations
Iyer PW, Camp NH. Overview of documentation. In: Iyer PW, Camp NHeditors. Nursing documentation: a nursing process approach. 4th ed.Flemington, NJ: Med League Support Services, 2005 American Nurses Association. Principles for documentation. SilverSpring, 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 Statutes53Acknowledgements