4 Defending yourself through documentation
An inherent part of health care, medical malpractice lawsuits loom perpetually over healthcare practitioners. How can you protect your reputation, your license, and your livelihood? What can you do today to help defend yourself against lawsuits tomorrow?
Tightening up your documentation can go a long way. It’s easy to get complacent about documentation when you’ve gone a few years without the threat of a lawsuit. But complacency can put you in legal peril. Lax documentation can reflect lapses in care or inappropriate care, providing the basis for a lawsuit.
You don’t need to acquire new learning to improve your documentation. You just need to reform your habits and “resurrect” your thinking. The medical record is the most important piece of evidence in a malpractice lawsuit, forming the basis for both the allegations and the defense. A lawsuit can take years to surface. By the time it does, the chance that you’ll recall a particular patient out of the countless ones you’ve cared for is miniscule. So don’t rely on memory. Instead, make sure your documentation reflects the patient’s condition and all the care you’ve rendered.
To minimize your chance of being named in a medical malpractice lawsuit, follow the advice below.
Use correct punctuation to promote clear understanding
Keep in mind that punctuation can significantly change the meaning of a phrase or sentence. Obviously, the following nurse’s note is missing some punctuation: “Diminished breath sounds on right hypoactive bowel sounds.” This omission leaves the door open to speculation and debate in court.
Be precise about the basics
Make your documentation factual, brief, clear, complete, and timely. Write a narrative for anything not shown on a graphic, because everything pertinent to the patient should be documented clearly somewhere in the chart. Ensure legibility of all handwritten entries.
Never “prechart” or let nonlicensed staff do so
Say, for instance, a certified nursing assistant (CNA) precharts her work plan—but the patient dies before noon. If the patient’s family files suit, both you and the CNA are likely to end up in court.
Take care with limited-space forms, such as flowsheets and graphics
These can quickly become a mess and pose legal problems if you make overlapping marks or don’t leave space to correct errors. Without enough space to correct errors, your documentation may appear illegible or unclear. And forego cute or artsy marks; they may be lovely or interesting, but if you don’t confine them to one space, leave them out.
Also, stick to the form’s symbol legends. One nurse I know charted “G” for good, instead of the correct “C” for clear lungs.
Report all patient complaints –and document that you did so
When attorneys review a patient’s medical record, they look for descriptions of the patient’s condition, any changes in condition, and how caregivers responded. They examine all the medical information and any patient complaints reported. Never underestimate the power of a patient complaint. Whether or not assessment findings support a diagnosis, the patient’s report of signs and symptoms is viewed as a warning sign.
Suppose, for example, a postoperative patient repeatedly complains of mild abdominal pain but preliminary test results are negative. Eventually, she suffers a perforation of the large intestine; a subsequent lawsuit alleges you should have told the physician about her complaints of pain. The patient’s attorneys are likely to claim the complaint alone should have been enough to return her to surgery. So to protect yourself, report all patient complaints to the physician—repeatedly, if necessary—and document that you did so.
Know that double-checks require correct documentation
One lawsuit alleged a morphine overdose. The caregiver who’d double-checked the dosage put her initials in the wrong place, rendering them useless. The plaintiff’s lawyer argued there was no assurance her initials in that space applied to that particular morphine check.
Document your communications with others
As a nurse, you’re required to be a patient advocate. Lawyers routinely check to see if the chain of command was followed once a problem became apparent. So follow the chain of command precisely—and document this fact, along with any unsuccessful attempts to contact those in authority. Expect the plaintiff’s attorneys to have a copy of your organization’s hierarchical chart and to check that you followed the chain correctly.
When you document that you informed a physician about the patient’s condition, record everything you told the physician. In some malpractice cases, physicians have alleged that a nurse didn’t report everything. So provide all the information a physician needs and let your documentation reflect this. For the same reason, be sure to document specific notifications and teaching you provided to patients and families. Remember—documentation trumps a “he said, she said” stalemate, regardless of who is involved.
Don’t criticize others in the medical record
The medical record is meant to be patient centered; criticism of others doesn’t belong there. Instead, follow the required procedures to report staff issues through the right channels. Finger-pointing can trigger a lawsuit, with your documentation as the main attraction. A nurse once documented that a physician had a poor bedside manner. Although she didn’t end up as a defendant in a lawsuit, her remark caused her more grief than the physician caused the patient.
Document objectively without opinion or bias
Stereotyping and labeling patients is imprudent, can lead to poor care, and can be dangerous legally. Biased documentation is common with substance-abuse patients. Avoid such terms as “drug seeking” or “drunk.” Instead, simply describe the patient’s behavior in an objective way. Jurors will be able to figure it out, whereas insinuating in the chart that you didn’t like, respect, or believe the patient will reflect badly on you.
Document as if your employer and lawyers will read what you write
Allegations and imperfect outcomes can trigger a review of the medical record. Attorneys, managers, risk management and quality assurance officers, an analysis team, or a state surveyor may end up combing the pages of your patient’s medical record. So before you document your care, think about what you’re going to write and how you’re going to write it.
View your documentation as protection
Accurate, complete documentation can protect you, proactively or reactively. Fight “documentation complacency” by routinely asking yourself whether your charting is getting lax. Challenge yourself to always adhere to the highest documentation standards, and keep in mind that good documentation is just as important as good patient care. Juries link an orderly, well-documented record with good patient care. Documentation is your legal leg to stand on, helping you to protect your livelihood.
Vickie Myers is a legal nurse consultant in Villa Ridge, Missouri.
Lobo R. Guilty or Innocent? Protecting Your License Through Proper Documentation. Eau Claire, Wisc: PHC Publishing; 2012.