Documentation could lead to a courtroom 'save'
Documentation could lead to a courtroom 'save'
In a testicular torsion case, consistent and clear documentation by both ED nurses and physicians of the complaint, the onset of the problem and the examination of the patient placed the patient outside the timeframe where any medical intervention would have lead to a different result. "There was a favorable outcome for the physician," says Chris DeMeo, a health care attorney at McGlinchey Stafford in Houston.
In a kidney stone case with devastating injuries, documentation of the absence of flank pain explained a delay in diagnosis which eventually led to the dismissal of the ED physician who cared for the patient.
In a negligent discharge case, a patient was given narcotics for a migraine, was discharged, and drove herself home, ending up in a single-car accident and rendering herself a quadriplegic. "The plaintiff's theory was that the physician and hospital staff should have made sure the patient had a safe way home before discharging her," says DeMeo. However, clear and consistent documentation by nurses and physicians on statements made by the patient resulted in a jury finding the hospital and the patient each 50% responsible.
The actual cases provide examples of documentation by ED staff "saved the day."
Two Common Misconceptions
Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals, says he often hears this question from ED staff, "Is it more important that I do a good job caring for the patient or that I do all of this paperwork?"
"Unfortunately, it is not an either/or proposition," says Frew. "You cannot establish that you did a good job of care without documenting that care."
During an investigation by the Centers for Medicare & Medicaid Services, you need documentation to prove what you have done. "And in court, your documentation is most of your defense. It prevents many suits from ever occurring, and it is your strongest objective evidence that you met the standard of care," says Frew.
A second mistaken belief is that the less you write in the record, the less likely you will get sued. "This keeps cropping up, but I know of no malpractice insurance carrier's risk department that subscribes to that idea," says Frew. "For the most part, it is a rationalization for poor records."
Obviously, the quality of the record counts as well as the length. "So if you insist on putting inaccurate, incomplete, or entries that suggest lack of professional competency in the record, lengthy records won't help you in court," says Frew.
Here are simple documentation practices that can "make or break" the outcome of a lawsuit:
Give explicit discharge instructions for how and when to follow up with a physician. Jill M. Steinberg, a shareholder at Memphis, TN-based Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., says that she has seen lawsuits involving the alleged failure of the ED physician to give good discharge instructions. "Clear documentation of what the patient was told can be essential to defending the case," says Steinberg.
Also, even though it is printed on the discharge forms, there should also be documentation by the physician that the patient was told to return to the ED if he or she continues to have problems or get worse. "The physician should also document, where appropriate, that the patient or family member understands the instructions," says DeMeo.
Document the timing of events, such as receiving reports from radiology. The time a specimen is sent to the lab, when the result was received in the ED and when it was provided to or read by the ED physician can be critical elements in the timeline of care. These often go undocumented.
"This problem is complicated by the fact that the clock in the lab, the clock on the computer providing the lab results, and the clock in the ED may not be synchronized. This may suggest a gap in time when there is none," says DeMeo.
Follow the standard documentation procedures of the facility, including instructions for template charting. Typically, there is a standard practice for documenting positive and negative findings, such as checks for positives and slashes for negatives. "Unless the form specifically provides that everything is normal or negative unless marked, the practitioner should mark all the boxes or blanks on the form as positive or negative," says DeMeo. "What often happens is that normal findings are not marked, making it look like the patient was not evaluated for those matters."
Document the chief complaint, time of onset, and treatments prior to arriving in the ED in the patient's own words, without putting your own spin on it. "For example, 'I broke my left wrist' should not result in a chief complaint note of 'pain in wrist,'" says Frew.
When patients are non-compliant, refuse care, or refuse to sign a refusal, it is often helpful to quote at least some of their comments. "It is not necessary to include all of the expletives, but exact quotes in quote marks are often very persuasive for the jury," says Frew.
In warning patients about potential complications, risk of refusal, or risks of transfer, use exact quotes on items that you want to emphasize, and in cases where you are concerned that a dispute may result about what you told the patient. "Details of what was told to the patient or family can otherwise be described rather than quoted," says Frew.
Frew also advises avoiding the phrase "risks and benefits discussed with patient" because "that entry proves nothing and, at best, leaves the jury to decide who said what. Instead, describe the risks, benefits, and alternatives in detail. Quote specific exchanges, such as questions and answers."
As for details of arguments, problems, and accidents, Frew says that it's best to put these into incident reports rather than medical records. "In completing an incident report, verbal exchanges that are likely to come up later should be quoted as closely as possible," says Frew.
If you do quote the patient's exact words, or if you quote exact words of ED physicians, consulting physicians or radiologists, always use quotation marks, says DeMeo.
Document promptly. With emergency physicians working various shifts, some find it easier to get charts done more promptly than others. However, many physicians let charts go for long periods of time before completing them or doing dictation.
"Various studies show that 50% of detail memory is lost within 72 hours," says Frew. "Seeing a lot of patients, some of whom may have had similar general conditions, blurs the factual detail even more. By the time you let several days or a week go by, anything you add to the chart is mostly creative fiction."
Document facts, not opinions. "What the patient looked like, what discussions were had with the patient, and the nature of the diagnosis are all important things that should be clearly and fully documented in the chart," says Steinberg.
Avoid failing to fill out standardized fields in the ER record. If you find that in your practice that you rarely use certain fields, bring that to the attention of the hospital so that perhaps those fields will be removed. "Failure to document in areas of the chart that are available to the physician can look as though the physician has failed to perform required assessments or do all that should be done for the patient," says Steinberg.
Avoid making personal notes to supplement things that aren't in the patient's chart. "This isn't typically advisable. If these are made, it may look as though the physician feared being sued and is trying to cover up something," Steinberg says.
If a physician has done a good job of documenting the care in the chart, there should be no need for additional notes. After a bad result is brought to a physician's attention, if the patient is no longer in the facility so notes can be made in the chart, a physician might consider making notes after meeting with the patient or a family member, just to memorialize the conversation, says Steinberg. "Again, if notes are made, they should be factual, not filled with opinions or speculation," she adds.
Sources
For more information, contact:
Chris DeMeo, McGlinchey Stafford, Houston, TX. Phone: (713) 335-2132. E-mail: [email protected]
Stephen A. Frew, JD, Vice President-Risk Consultant, Johnson Insurance Services LLC, Madison, WI. Telephone: (608) 245-6560. Email: [email protected].
Jill M. Steinberg, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Memphis, TN. Phone: (901) 577-2234. E-mail: [email protected]
In a testicular torsion case, consistent and clear documentation by both ED nurses and physicians of the complaint, the onset of the problem and the examination of the patient placed the patient outside the timeframe where any medical intervention would have lead to a different result.Subscribe Now for Access
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