Write It Right:
Defensible EMS
Documentation
Copyright 2007, Page Wolfberg & Wirth, LLC
Overview

Part I
Basic Framework
The Legal System and
Avoiding Negligence
Claims
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Overview

Part II
Documentation
Fundamentals
Clinical and Operational
Essentials
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Overview

Part III
Special Situations
Consent, Refusals,
Minors, Advance
Directives, and
Protecting Patient Privacy
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Part I
Basic Framework:
The Legal System and
Avoiding Negligence Claims
Part I – Overview

Criminal and civil law

Key areas of EMS liability

Defining negligence
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Part I – Overview


The case of “negligent
documentation”
Documentation and the
anatomy of a lawsuit
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The Legal System

Criminal Law

Civil Law
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The Legal System

Criminal Actions in EMS
• Vehicle operations
• Health care fraud and abuse
• Embezzlement
• Patient abuse
• Drugs
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The Legal System

Civil Actions in EMS
•Negligence
•Discrimination
•False Claims
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The Legal System

Tort Law
•Unintentional torts
•Intentional torts
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Intentional Torts




False imprisonment
Assault
Battery
Invasion of privacy
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Key Areas of EMS Liability

Motor Vehicle Accidents

Response Delays
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Key Areas of EMS Liability

Bad Refusals (Abandonment)
•Failure to consider
“competency”
•Failure to document
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Key Areas of Liability

Patient Care Issues
•Airway management issues
•Spinal immobilization issues
•Equipment failures or
inadequate equipment
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Poor Documentation
= Potential Liability
EMS “Malpractice”
Defining Negligence
Ordinary Negligence

“The failure to act as a
reasonably prudent EMT or
paramedic would act under
similar circumstances”
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Gross Negligence


“Qualified Immunity”
Similar to “Good Samaritan”
laws: Immunity may only
apply to individual care
provider
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Gross Negligence

Substantially more than
“ordinary carelessness,
inadvertence, laxity or
indifference”
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Gross Negligence

Behavior that is “flagrant,
grossly deviating from the
ordinary standard of care”
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Elements of Negligence
Duty
 Breach
 Damages
 Proximate Cause

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Duty to Act

Legal duty vs. moral duty
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Breach of Duty


Failure to uphold standard of
care
Failure to act as a “reasonably
prudent provider would under
similar circumstances”
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Breach of Duty

Expert witnesses
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Damages (Harm)





Medical expenses
Pain and suffering
Lost wages
Funeral expenses
Punitive damages
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Proximate Cause


Did your negligence cause the
harm to the patient?
Courts often look at
“foreseeability”
• Was the harm a “foreseeable
consequence” of your conduct?
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Organizations Are
Liable
For the Conduct of
Their “Agents”
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Case Study:
The Case of Negligent
Documentation
The Case of
“Negligent Documentation”

De Tarquino v. The City of Jersey
City (Superior Court of New
Jersey, Appellate Division, 2002)
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Facts



Patient allegedly involved in
altercation with police
EMTs arrived at the police station
Patient vomited during the EMS
treatment
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Alleged Facts
Transported patient
 Crew provided copy of PCR to
the hospital
 PCR indicated “-N/V”
(negative for
nausea/vomiting)

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Alleged Facts
Hospital released patient to
police
 Experienced seizures
 Transported again
 Declared brain dead: Epidural
hematoma

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The Lawsuit

Family alleged that
ambulance crew negligently
failed to document that the
patient vomited
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The Lawsuit

Trial court:
• Dismissed the lawsuit against the
EMTs
• NJ immunity statute protected
them from liability
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The Issue

Does the immunity provision
apply only to the direct
rendering of patient care, or
does it include the preparation of
documentation describing that
care?
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Appeals Court Decision


Plaintiff’s claim not based on
negligence in the performance of
actual patient care
Claim based on alleged
negligence in failing to properly
document that care
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Appeals Court Decision

Immunity statute did NOT
protect against negligence in
documentation
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Lessons From This Case


Documentation may be
“negligent” even when patient
care is not
Standard of “ordinary
negligence” may apply to
documentation rather than
“gross negligence”
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Lessons From This Case

Immunity statutes can’t be
relied on to protect you in all
cases!
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The PCR in Court



Discovery before the lawsuit is
filed
During discovery
During trial while YOU are on the
witness stand!
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Part II
Documentation Fundamentals
Clinical and Operational
Essentials
Part II - Overview
Purposes of EMS
documentation
 Documentation fundamentals

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Part II - Overview
Chronological documentation
 The “C.A.T.” approach
 Making amendments

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Basic Purposes of
EMS Documentation





Document patient care
Quality assurance
Data collection
Legal record
Reimbursement record
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Key is Communication

A well prepared PCR will only
come about when you have a
good rapport and effective
communications with the
patient!
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“Seeing the Same Patient”

Two people should be able to
read a PCR and visualize a
patient with the same level of
acuity
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“Visualization Test”

If another field provider’s vision
of the patient after reading the
PCR is not close to your vision,
check your documentation!
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Documentation
Fundamentals
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FUNDAMENTAL PRINCIPLE:
Watch Abbreviations, Spelling
and Acronyms!
Neatness and Organization
DO COUNT!
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Abbreviations and Acronyms

Maximize information you can
document
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Abbreviations and Acronyms

Standard and approved
abbreviations and acronyms
ONLY!
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“If It Isn’t Written, It
Didn’t Happen!”
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Need to Document . . .




Relevant history
Pertinent findings
Pertinent negatives
Relevant actions taken
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General
Documentation Format
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Documentation Format

S. O. A. P.

C. H. A. R. T.
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S. O. A. P.
S ubjective
 O bjective
 A ssessment
 P lan

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C. H. A. R. T.
C hief Complaint
 H istory
 A ssessment
 Rx (treatment)
 T ransport

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C hief Complaint
Usually what the patient tells
you (but not always!)
 “Patient’s chief complaint is
chest pain”

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H istory

History of present illness
•Elaborates on chief complaint
•Described by patient or others
•Answers the question: What
happened?
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H istory

Past medical history
•Relevant past medical
conditions
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H istory

Medications
•Current medications and
dosage

Allergies to medications
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A ssessment

General impression of the
patient
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A ssessment
Level of consciousness
 Vital signs

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A ssessment
Field diagnostic tests
 Head-to-toe physical exam

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Rx - Treatment




Standing orders or protocols
Medical command
Interventions
Patient response
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T ransport

Method of transfer (stair chair to
stretcher, etc.)
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T ransport



Mode of transportation
(ambulance)
Condition enroute, additional
treatment and response
Transfer of care to hospital staff
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Documentation Formats


These are suggested approaches
Comply with your agency’s
policies
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Documentation Fundamentals

Avoid subjective statements
and conclusions!
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Documentation Fundamentals

Use quotations and
paraphrasing appropriately
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Patient describes pain as
“crushing like a boulder on
my chest”
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Patient states “I had about 6
beers before I left the tavern”
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Documentation Fundamentals



Observation of the first
responders/bystanders
Vital signs/assessments
Patient’s mental status
(consent)
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Documentation Fundamentals

Command consult, orders
and adherence to protocol
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Documentation Fundamentals

Transfer of care and condition
at time of transfer
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Documenting
Interventions
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Intravenous Lines


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

Where started
Who started it
Size and type of catheter
Type of fluid
Infusion rate
Patient response
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Oxygen
Who administered it
 Device used
 Flow rate
 Pre- and post- saturation
levels
 Patient response

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Medications

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



Contraindications and allergies
Name of medication
Dosage, method and route of
administration
Time administered
Who administered it
Patient response
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Documentation of
Access Delays

Causes of delays in
accessing or transporting
the patient
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Documentation of
Access Delays
Extrication
 Weather
 Traffic
 Crowds
 Hazardous materials
 Violent/unsafe scene

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Chronological Documentation

How was patient moved? (twoperson sheet lift, standing pivot,
walked to stretcher, “shuffled 5
feet with assistance on each side
to the stretcher”)
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How Was Patient Moved?



Two-person sheet lift
Standing pivot
Walked to stretcher
• Unassisted?
• Assistance required?
• Was gait steady or unsteady?
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Chronological Documentation

Disposition of patient?
(transported, refused care
and transport, etc.)
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Complete and Accurate
and Timely
(“C.A.T.”)
Patient Care Report
Completion
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The “CAT” Approach!

Complete
•All sections completed
•All important questions
answered
•All necessary signatures
obtained
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The “CAT” Approach

Accurate
•Information documented is
correct
•No typos or other plain errors
•Legible!
•Correct internal procedures
followed
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The “CAT” Approach

Timely
•Provide to ER and others
according to standard
•Complete BEFORE end of shift
or according to standard
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Internal Consistency



PCR should not “contradict itself”
Read it!
Ensure internal consistency
between:
• Different sections
• Different crew members
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“Changing the Chart”


Misconception: “We can’t
touch the report after it’s
done”
Reality: Late entries and
corrections are permissible
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“Changing the Chart”




Appropriately noted and dated
Should not represent change as
if it was an original entry
Addendums if clearly dated and
marked
Original author
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“Changing the Chart”


Paper forms: Correct errors
with strikeout lines, initials and
date – (No “white-out”)
Supplemental sheets
permissible
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“Changing the Chart”

Proper and improper reasons to
“change” your documentation!
• Proper: To correct errors, oversights,
omissions, etc.
• Improper: To falsify, misrepresent, or
cover up
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Documentation
Example
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Dispatch

“Dispatched by 911 and
responded immediately to
possible heart attack. Upon
arrival found an appx. 300 lb.
male lying back on recliner in
living room, ashen, diaphoretic,
and in acute distress”
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Chief Complaint

“Chest Pain”
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History of Present Illness

“Patient states pain began about
an hour ago centered
substernally and that it has
remained constant. States he
was watching TV when pain
began.”
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History of Present Illness

“He describes pain as ‘crushing’
and ‘very bad’ at 9 intensity on
1-10 scale. States pain radiates
down his left arm which feels
“dull.” Patient also has nausea
but has not vomited. Denies
shortness of breath and has no
other pain or complaints.”
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Past Medical History

“Patient had a heart attack in
2000. States he had three
stents inserted in 2001.”
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Meds and Allergies

“NKA. Patient takes no
prescription meds, takes 1 - 82
mg aspirin tablet daily.”
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Physical Assessment

“Assessment performed by
Paramedic Waylon Yelp. Patient
alert and oriented x 4 but in
acute distress from the pain,
GCS 15, skin diaphoretic ashen
in color.”
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Physical Assessment

“Monitor shows Sinus Tach at
120. O2 sat 90%. Lungs were
clear bilaterally all fields,
abdomen soft non-tender. Able
to move all extremities with
equal strength and sensation.”
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Treatment

“Patient placed on O2 at 15 lpm
non-rebreather mask. 12 lead
EKG shows ST elevation in Leads
2 and 3 w/sinus tachycardia. IV
established 16 ga. left AC area.
Running TKO with normal saline
solution.”
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Treatment

“Medical command ordered MS 2
mg IV slowly and gave
permission to give up to 8 mg
titrated for pain relief. Also
ordered to give 2 aspirin tablets
and transport immediately.”
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Treatment

“Administered aspirin PO.
Patient was transferred from
recliner to stretcher using a two
person seat lift. Kept in Fowler’s
position. Moved to ambulance
and transported to ABC Hospital
ED.”
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Transport and Disposition

“While enroute, administered
additional 2 mg MS IV slowly and
within a minute patient states the
pain has decreased somewhat
from a 9 to a 5. No other change
in patient condition except his
color has improved and he is less
diaphoretic.”
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Transport and Disposition

“No other complaints while
enroute. Upon arrival at hospital,
transferred patient from stretcher
to ED litter using four person
sheet lift and continued Fowler’s
position. Care transferred to Sally
Sick, RN.”
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Part III
Special Situations
Consent, Refusals, Minors,
Advanced Directives, and Protecting
Patient Privacy
Part III - Overview



Importance of obtaining
“informed consent”
Assessing legal and mental
capacity
Handling and documenting
“refusals”
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Part III - Overview



Defining who is a patient
“Do Not Resuscitate”
documentation
Patient privacy and
confidentiality
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Properly Obtaining
Informed Consent
for Treatment
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Consent Challenges



Minor patients
Mental patients
“Walking Wounded”
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Consent Challenges



“No patient found”
Elderly
Obviously in need of medical
care
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Consent:
Informed authorization given by a
patient, who is both mentally and
legally competent, to emergency
medical services personnel for the
provision of medical care and/or
transportation
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The Goal:
Informed Consent
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Patient must be INFORMED of
the RISKS of refusing care and
the BENEFITS of treatment
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Legal Capacity

Minority
• Under the age of 18
• State laws typically contain some
exceptions

Adjudication of incapacity
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Mental Capacity

Organic brain disease
• Alzheimers or senile dementia

Situational medical crises
• Hypoxia
• Hypoglycemia
• Head trauma

Intoxication
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Mental Capacity

Assumption that patients are
competent until proven
otherwise
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Field Assessment of
Mental Capacity

Provider judgment based on
training, experience,
assessment, etc.
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Field Assessment of
Mental Capacity

Alert and Oriented
• Person
• Place
• Time
• Situation
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Glasgow Coma Score


Helpful adjunct for assessment of
mental competency
Helpful for documenting competency
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Assessing Competence


No absolute or “bright line” tests
for mental competency
Document your findings
accordingly!
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Informed Consent = Knowledge

Enough information that a
“reasonable person” would find
necessary and relevant to
medical decision-making
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Express Consent


Verbal
Physical
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Implied Consent
Exception to informed
consent doctrine
 Recognized in all states

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Implied Consent


Harm of failure to treat
outweighs the harm from
proposed treatment
Impractical to obtain consent
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Involuntary Consent
Laws that permit temporary
treatment or confinement
 Harm to self or others

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Scope of Consent
Limitations on treatment or
transport
 Obtain patient’s signature
 Withdrawal of consent

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Patient Refusals
Basic Rule:
A properly informed patient who is
both legally and mentally
competent has a right to refuse any
and all medical care, even if that
medical care would save his life
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Refusal Assessments

Perform three assessments:
•Legal competence
•Mental competence
•Situational or medical
competence
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Like informed consent,
informed refusal should
be the goal!
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Informed Refusals

A refusal situation is more
legally defensible when it is
“knowing” and “informed”
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Informed Refusals

Patient or legal decision-maker
must be informed of and
understand:
• Risks of non-treatment/non-transport
• Benefits of treatment/transport
• Options and alternatives
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Legal Decisionmaker

For refusal purposes, same as
for consent purposes
• Patient
• Legal guardian
• Power of Attorney (POA)
• School officials
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Documenting Refusals

Complete patient assessment

Patient’s mental status

Discussion with patient

Refusal/release form
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Documenting Refusals

Discussion of risks

Patient’s refusal

Consult with Medical Command

Obtain patient/witness signature
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The “A3 E3 P3”
Approach
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A3

Assess - patient condition and
capacity to make decisions
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A3


Assess - patient condition and
capacity to make decisions
Advise - patient of his condition
and proposed treatment
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A3



Assess - patient condition and
capacity to make decisions
Advise - patient of his condition
and proposed treatment
Avoid - confusing terminology
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E3

Ensure - the refusal is
knowing and voluntary
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E3
Ensure - the refusal is
knowing and voluntary
 Exploit – uncertainty

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E3
Ensure - the refusal is
knowing and voluntary
 Exploit – uncertainty
 Explain - alternatives
(consider a “Medical Miranda”
card)

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P3

Persist - don’t give up easily
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P3
Persist - don’t give up easily
 Protect - by documentation

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P3
Persist - don’t give up easily
 Protect - by documentation
 Protocols - comply with
them or make one that
works!

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Example:
The Bus Accident –
Who is a Patient?
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“Do we need to obtain refusal
signatures from each
passenger?”
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Who is a “Patient?”


Preferable to have refusal
signatures
The more refusal signatures you
obtain, the more protection you
have
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Who is a “Patient?”

At a minimum, attempt to
document names/conditions and
refusals on one PCR
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“Cancellations”
Document agency which
canceled
 Document reason for
cancellation
 Document all relevant times

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“Public Service” Calls


Person slipped out of her chair
and requires assistance getting
back into it
Person needs assistance opening
a vial of medication
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Example:
The Public Assist Call
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Public assist call to help move an
elderly female back into her chair at
a private residence
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You report to the residence, enter
the house, and find an elderly
person, Mrs. Smith, in no apparent
distress, laying on the floor in front
of a recliner
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You assist Mrs. Smith from the floor
back into her chair
She thanks you and you go back to
the station
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Ten days later, your organization
receives a distressed telephone
call from Mrs. Smith’s son
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The son informs you that his
mother suffered a fractured hip
falling from her chair at home, was
taken to the hospital, and passed
away a week later
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The son says that he was told by a
neighbor that your EMS agency
was at his mother’s house 10 days
earlier
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He is angry that no care was
provided when his mother
obviously suffered so significant an
injury
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You interview the crew and
determine that the patient
complained of no pain and was in
no distress at the time of your
public service assist
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The family later brings a lawsuit for
failing to provide necessary care to
Mrs. Smith
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Because Mrs. Smith was African
American, the family also brings
civil rights claims, asserting that
your organization’s failure to treat
Mrs. Smith was due to her race
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Without contemporaneous
documentation, any written
evidence from this incident
produced after the fact could
appear self-serving and defensive
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But proper documentation of the
incident could establish that Mrs.
Smith was not in pain and
complained of no injuries at the
time of the public assist call
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Tiered EMS Systems

Who documents?
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Documentation in Tiered
EMS Systems


ALS releases patient to BLS
How much ALS information
should a BLS provider
document?
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ALS-BLS Intercepts Documentation Caveats

BLS providers should not
document beyond their scope of
practice
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Advanced Directives and
“Do Not Resuscitate”
Orders
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“Do Not Resuscitate”
(DNR) Orders
and Advance Directives
“The Ultimate Refusal of Care”
DNR Issues

A DNR order typically means you
should withhold:
• Cardiac compressions
• Defibrillation
• Intubation
• Artificial ventilation
• Administration of resuscitative
drugs
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DNR Issues

Does not mean that pain cannot
be relieved, or in some cases
other lifesaving efforts (non
cardiac or resuscitative) can not
be attempted
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DNR Issues

Be attentive to:
•Presence of DNR
•Validity
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Advance Directives

“Powers of Attorney”
“Advance Directives” or
“Living Wills” are often NOT
the same as a DNR Order
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Durable Power of Attorney

“Durable Power of Attorney
for Health Care” (DPAHC) –
Allows a surrogate to make
health care and other
decisions for the patient
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Good Rules to Follow


Err on the side of the patient:
When in doubt, resuscitate!
If DNR Form or bracelet is not
found, resuscitation efforts
should be initiated or continued
if clinically appropriate
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DNR
Documentation Issues
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DNR: Documentation Issues




Existence and form of DNR order
Revocation
Questions about validity
Statements of patient/family
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Protecting Patient Privacy
and Confidentiality
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Confidentiality Concerns
PCRs are medical records
 The agency is the “owner” of
the record

© Copyright 2007 Page, Wolfberg & Wirth, LLC
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Confidentiality Concerns

The owner of the record – the
organization - has a duty to
protect its confidentiality
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State Statutes



AIDS/HIV
Drug/alcohol treatment
Psychiatric
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“Protected Health Information”
(PHI)





Verbal
Written
Electronic
Photographic/video
Includes PCRs
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All Rights Reserved
May Disclose PHI For . . .



Treatment
Payment
Health care operations
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It’s Up to All of Us to Make
Privacy and Confidentiality Part
of Our Organizational Culture,
at All Levels of the Organization
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The “Golden Rule” of Patient
Confidentiality:
What You See Here
What You Hear Here
When You Leave Here
Let It Stay Here!
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All Rights Reserved
Electronic Medical
Records and PCRs
© Copyright 2007 Page, Wolfberg & Wirth, LLC
All Rights Reserved
Many Advantages of
Electronic PCRs
Legibility
 Spelling
 Organization
 Prompts and reminders

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Standing Up in Court
No major issues
 Treated like paper
“originals”

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