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Lisa D. Shannon RN, JD
Corporate Manager, Clinical Risk Services
Corporate Risk Services


 Seven-thirty in the morning the phone rings on the
nursing division, its Risk Management on the line, asking
you to stop by the Department as soon as possible;
 You finish report, assess your patient, find someone to
cover for you and walk over to the Risk Management
Department and discover…
 YOU HAVE BEEN SERVED AS A DEFENDANT
IN A LAWSUIT!
2
Imagine this…


No matter how skilled you are, poor nursing
documentation will undermine your
credibility if you‟re ever involved in a
lawsuit.
3
But, I‟m a Great Nurse!

Our Focus Today…
Practical Guidelines that will not only improve patient care, but
help shield you from legal fallout if something does go wrong.
4


Concepts
 The Purpose of the
Medical Record
 Standards of Care
 Finding Flaws in the
Medical Record
 Avoiding Documentation
Pitfalls
 Preserving the Medical
Record
 Common Allegations and
Defenses
 Statutes of Limitations
5


Purposes of the
Medical Record
6


 Nurse and Physician working in a correctional institution were accused of
professional negligence.
 In the lawsuit, representatives from the inmate‟s estate alleged that
Hartzell (“the inmate”) had been denied proper medical care, including
medication, an omission that allegedly caused his death.
 After reviewing the evidence, the court concluded that Hartzell was not
denied 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 its
claims against the nurse or the doctor accused. 7
Hartzell v. City of Warren, et, al.

 Substantiating the health condition, illness, or presenting concern
of a patient;
 Communicating among health care professionals;
 Recording the patient‟s response to care;
 Auditing care for quality improvement, third-party payment, and
governmental and regulatory purposes;
 Conducting research; and
 Resolving competency, disability, guardianship, and other legal
issues.
8
Purposes of the Medical Record


Conduct that falls below the standards of
behavior established by law for the
protection of others against unreasonable
risk of harm.
A person has acted negligently if he or she
has departed from the conduct expected
of a reasonably prudent person acting
under similar circumstances.
10
Negligence


The failure to provide the
prevailing standard of care to a
patient, which results in injury,
damage, or loss to the patient.
11
Professional Negligence


 Duty to the plaintiff existed. Duty is established when a
health care professional assumes care of a patient under
her scope of practice, licensure, and employment.
 Breach, the standard of care was breached. The standard
of care is based on what a reasonably prudent
professional with similar expertise and responsibilities
would have done under similar circumstances.
 Damages, The patient was injured.
 The injury was caused by the breach in the standard of
care (Proximate Cause).
12
Elements of Negligence


The person filing a lawsuit is the
Plaintiff.
The person defending themselves or
their organization from the lawsuit is
the Defendant.
13
Plaintiff v. Defendant


A duty placed upon a civil or criminal
defendant to prove or disprove a
disputed fact.
14
Burden of Proof


So, What‟s the Plaintiff‟s
Attorney Looking For?
15


 The plaintiff has the burden of proof.
 If he prevails, he‟s awarded damages based on his
economic losses and possibly noneconomic losses.
 In professional negligence cases expert witness testimony
is required.
 State law determines who can testify as an expert.
 In most states, Good Samaritan laws shield health care professionals from liability
if they volunteer to help someone in good faith in an emergency outside the scope
of their employment. 16
Lawsuit Alleging Professional
Negligence


 Defines what is accepted as „reasonable‟ under the
circumstances.
 Defines the degree of skill care, and judgment used by an
ordinary prudent health care provider under similar
circumstances.
 Standards of Care are determined by state Nurse Practice
Acts, state and federal regulatory agencies, oversight
agencies (such as Joint Commission), policy and position
statements by specialty societies, health care institutions
and organizations, current literature, among other
sources.
18
Standards of Care


Finding Flaws in the
Medical Record
19


 Inconsistencies, inaccuracies, or voids in the medical
record are Red Flags to the plaintiff‟s attorney.
 These red flags may assist the plaintiff‟s attorney in
proving her case.
20
Flaws in the Medical Record


An attorney seeking to bring a professional negligence claim
examines the medical record for evidence that will help her prove
her 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.
21
Looking for Red Flags in the
Medical Record

 Pages without any patient identification – no patient stamp;
 Notes written on the wrong date, or times that don‟t correlate
with 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 the
chronology of the patient‟s medical course; or
 Inappropriate comments or healthcare provider infighting in the
medical record.
22
Red Flags
These examples are sure to catch her eye!


Avoiding Documentation
Pitfalls
Base your documentation on objective assessment findings; and
Document as close to the intervention as possible.
23


 Make sure no mysterious gaps in the medical record
would permit someone to speculate about what
happened.
 If paper charting, don‟t leave spaces so you can add
more documentation later.
 This type of “squeezed in” charting could appear as a
cover-up.
24
Documentation Pitfalls
Gaps


 Never chart to cover up an incident or document
health care that wasn‟t provided.
 Failing to accurately and completely document the
events of an adverse incident and subsequent
treatment can result in an unsolved mystery.
 The plaintiff‟s attorney will try to solve this mystery
by creating a theory about what happened.
 Without solid documentation, the attorney‟s theory
may be difficult to refute. 25
Gaps


 Document all medically relevant facts related to an
incident in the medical record.
 Document the investigation of an incident in the
EVENT REPORT!
Do not document that an event report
has been filed in the patient‟s medical
record.
26
Tip


 Inappropriate comments about a patient or labeling the
patient or his behavior suggests that you were biased
against him/her.
 These terms might suggest that you didn‟t provide the
patient with the same level of care that you gave to other
patients who were more agreeable; and
 Could lead to allegations of professional negligence or
defamation.
27
Bias


 Keep your personal opinion out of the record.
 You should factually and objectively document the
patient‟s behavior (including any failure to adhere
to treatment) if it‟s relevant to the patient‟s care.
 This could help your lawyer demonstrate that the
patient contributed to his own problems while you
maintained a high standard of nursing care.
28
Bias


 When documenting make sure you are following your entity‟s
policies and procedures.
 Deviating from the established entity policies and procedures may
allow the plaintiff‟s attorney to create an unflattering scenario for
the jury.
 For Example:
 The entity‟s policy dictates that a complete nursing assessment will be
documented Q8 hours, however, nursing staff only completes a
complete assessment Q12 hours.
 This finding can be interpreted as a deviation from the entity‟s standard
of care.
29
Deviation from Policies and Procedures


Preserving the Integrity of
the
Medical Record
30


 Accurate and complete patient information must be entered on all
paper and electronic documents;
 EKGs, radiology, fetal monitoring strips and other test reports must
be properly labeled, sequentially listed and kept with the medical
record;
 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 patient
themselves before co-signing another clinician‟s assessment records. 31
Preserving the Integrity of the
Medical Record

 Late entries must be made in accordance with
acceptable organizational standards.
 Interventions defined in critical
pathways, policies, procedures, protocols and
care plans must be followed and
documented.
 If a standard recommendation is not
followed, the reasons for this must be
documented.
 The patient‟s response to interventions and
the clinicians response to a worsening
32
Medical Record


 Doctor‟s orders must be transcribed and carried out as
soon as possible;
 Discharge instructions and the patient‟s response to them
must be documented;
 All attempts to contact other health care professionals
must be documented, including the time of the attempt or
contact.
 Do document any speculation about why another provider
might have not responded promptly. 33
Medical Record


Common Allegations
and Defenses
34

Failure to Accurately
Assess and Monitor the
Patient‟s Condition
The Scenario
A patient was admitted to the hospital after
sustaining serious injuries in a MVC. After 15
days in the ICU he was transferred to a private
room in the med/surg unit.
At the time of transfer, the patient still had a
tracheostomy because he was having difficulty
breathing and was coughing up large amounts
of thick yellow mucus.
The patient was unable to speak because of the
tracheostomy.
That evening the patient had a slightly
elevated temperature and a blood pressure of
210/100. His MD ordered an ABG and TNG
paste. His nurse drew the ABG and applied
the TNG paste, then left the patient alone.
Feeling anxious and short of breath, the
patient attempted to summon the nurse with
the call button but fell out of the bed reaching
for the light.
He was found lying on the floor and was
determined to have a hip fracture and SDH.
He was transferred back to the ICU.
35


 Failure to properly monitor the patient‟s care, treatment and
condition;
 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‟s
condition to ensure that he receives proper care and
treatment. Patients and their health care providers rely on
you for this. Failure to monitor is a breach in the standard of
nursing care that could expose you to liability.
36
Failure to Accurately Assess and Monitor
the Patient‟s Condition

Failure to Notify the
Health Care Provider of
Problems
The Scenario
Mrs. Cannon‟s condition was worsening.
Her nurse called the Obstetrician several
times to report the deterioration but failed
to document her initial unsuccessful
attempts to reach the physician.
In a deposition, the nurse testified that
she‟d called the physician as soon as she
noted a change in Mrs. Cannon‟s
condition.
Her nursing documentation indicated
that the patient‟s condition changed for
the worse at 1440, but an attempt to
contact the patient‟s physician wasn‟t
documented until 1545.
The Obstetrician corroborated the nurse‟s
testimony, but the jury refused to
overlook the lack of documentation and
awarded Baby Conner a large award for
the damages the infant sustained.
37


 The duty to monitor the patient‟s condition and the
duty to notify the patient‟s health care provider of
pertinent information go hand in hand.
 The nurse is expected to use his/her judgment to
determine when to notify the health care provider
and what to communicate.
 A failure to communicate that results in harm to the
patient may result in liability for the nurse.
38
Failure to Notify the Health Care
Provider of Problems


 When you make calls to relay urgent information to
the 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‟s
response and directives; and
 Make sure the physician‟s name is included in the
documentation.
 Do not refer to the physician simply as “the MD”. 39
Tip

Failure to Follow
Orders
The Scenario
 Jeff Olsen was admitted to the hospital with a diagnosis
of sinusitis and upper respiratory tract infection.
 His MD ordered a CT scan and an opioid analgesic to
alleviate his pain.
 According the written order, Mr. Olsen was supposed to
receive morphine Q4hrs. PRN.
 Mr. Olsen‟s MD also ordered Q4hr vital sign checks.
 At midnight, his blood pressure was 90/60, down from
160/80 at 2000.
 Because Mr. Olsen was still complaining of pain his nurse
administered an additional dose of morphine only 2 ½
hours after the last dose without consulting the patient‟s
MD.
 When the nurse checked on Mr. Olsen at 0400 , she found
him in cardiac arrest.
 Mr. Olsen was resuscitated but suffered severe hypoxic
brain injury.
 The hospital and nurse were sued.
40


 Failure to give nursing care as ordered can be a deviation
in the standard of care unless a legitimate concern about
the appropriateness of the order, based upon an
assessment, exist.
 A plaintiff‟s attorney will look at the health care
provider‟s orders to determine what time orders were
written and at the nurse‟s documentation to determine
when they were transcribed and carried out.
 You are responsible for carrying out orders in a timely
fashion as well as, identifying inconsistent or
inappropriate orders that could endanger the patient and
intervening appropriately.
41
Failure to Follow Orders


 Make sure confusing, conflicting or inappropriate
orders are clarified; and
 Document that the orders have been properly
authenticated before they are carried out.
42
Tip

Failure to Follow
Policies and Procedures
The Scenario
 Kim Stevens, a patient in the ICU, went
into cardiac arrest during the dayshift.
 During a successful resuscitation effort,
she was intubated.
 Later in the day, after she‟d been weaned
and extubated, she suffered another
cardiac arrest.
 The crash cart that had been used for the
earlier code had not been checked and
restocked.
 Because the appropriate sized
laryngoscope blade wasn‟t on the cart, the
MD was not able to intubate her.
 A nurse was able to get the blade from
another cart but the delay caused severe
brain damage.
 Ms. Stevens died without regaining
consciousness. 43


 Entity policies and procedures establish a standard of
care.
 Any deviation from standards can result in liability
exposure.
 As demonstrated in the previous case, a patient was
injured because the staff failed to follow an established
protocol for checking and restocking the crash cart after
every code.
 Documenting nursing actions taken, shows that you
followed the proper protocols and did what a reasonably
prudent nurse would do. 44
Failure to Follow Policies and
Procedures

Failure to Delegate and
Supervise
The Scenario
 A charge nurse asks a patient care
technician (“PCT”) to perform a
finger-stick on a patient with
diabetes.
 The PCT performed the test and
documented the reading on the
chart.
 At the end of the shift, the charge
nurse asked the PCT what the
reading was and he said it was
HHHH.
 Alarmed, the charge nurse
repeated the test and got a reading
above 800mg/dl.
 The patient was transferred to the
ICU.
45


 Staff members who supervise others are expected to know the
skills, experience, and expertise of staff when making
assignments.
 Supervisory staff members are also expected to ensure that
members of the staff have received proper orientation and
training on equipment and supplies being used for patient
care.
 To avoid allegations related to improper delegation, the nurse
must know which patient care needs can be delegated to an
unlicensed staff member.
46
Failure to properly Delegate and
Supervise


 Establish time limits within which a patient (or
someone acting on the patient‟s behalf) must file a
claim in response to an injury.
 These time limits are defined by state law and vary
from state to state.
 In many states, the time limit is two years from the
date of the injury or its discovery.
48
Statute of Limitations


 Missouri Revised Statutes § 516.105 Actions against health
care providers (medical malpractice).
 “…brought within two years from the date of occurrence of
the act of neglect complained of.
 Exceptions:
 Retained foreign objects – two years from the date of
discovery (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. 49
Missouri


 Illinois Compiled Statutes 735 ILCS 5/2-1116
 In Illinois, the state statute of limitations for filing medical malpractice
lawsuits is generally 2 years from the date the negligent injury occurred.
 Exceptions:
 If, however, the injury was not immediately discovered, a lawsuit must then be
filed within 2 years of when it was discovered or reasonably should have been
discovered, but not longer than 4 years after the date of the injury.
 The statutes of limitations for malpractice actions that result in death are called
wrongful 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 filed
within 8 years of the date or before their 22nd birthday.
50
Illinois


 Instances do exist where it is not possible until considerable
time has passed to identify the cause of an injury or to discover
that an injury has occurred.
 Legislatures and courts have developed a series of rules to help
determine when the actionable period should properly begin.
 Depending on the circumstance, the time period may begin
when:
 The injury occurred;
 The Injury was discovered; or
 At the end of treatment.
51
Statutes of Limitations

 A Patient‟s attorney may file a claim
asking the court to “toll” – delay or
suspend– the statute of limitations.
 For Example:
 In injuries that occur in childhood or
during childbirth (which may result
motor deficits or developmental delays),
the statute of limitations may be tolled
until the injured person reaches “legal
age”.
 The legal age is determined by state law.
 In most states the legal age is 18 yrs., but
may be 19yrs. or 21yrs. in others
52
Tolling the Statutes of
Limitations


 Iyer PW, Camp NH. Overview of documentation. In: Iyer PW, Camp NH
editors. Nursing documentation: a nursing process approach. 4th ed.
Flemington, NJ: Med League Support Services, 2005
 American Nurses Association. Principles for documentation. Silver
Spring, 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 Statutes
53
Acknowledgements


Questions
Lisa D. Shannon, RN, JD
Corporate Manager, Clinical Risk Services
Lshanrn_99@sbcglobal.net
314.650-5744 54

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