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

Please use session code shown above when completing your speaker evaluation and CE form.

Return the evaluation to the registration desk or receptacles located outside meeting rooms at the end of the day.

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 techniques were used.

one document

that could best prove that proper infection prevention

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