24 NURSING
DOCUMENTATION
MISTAKES THAT
COULD GET YOU SUED
Patricia Iyer MSN RN LNCC
24 Nursing
Documentation
Mistakes
That Could Get
You Sued
Patricia Iyer MSN RN LNCC
© Copyright 2014
All Rights Reserved
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24 Nursing Documentation Mistakes
That Could Get You Sued
Pat Iyer
President, The Pat Iyer Group, LLC
www.patiyer.com
Med League Support Services, Inc.
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260 Route 202/31, Suite 200
Flemington, NJ 08822
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© Copyright Pat Iyer MSN RN LNCC 2014
No reproduction without written permission
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About the Author
Patricia Iyer MSN RN LNCC is president of Med League Support
Services, Inc. and The Pat Iyer Group. Med League Support Services, Inc.
assists attorneys by providing case summaries, expert witnesses, literature
searches, timelines and other services. The Pat Iyer Group, LLC provides
webinars and books to help legal nurse consultants fine tune their skills.
Patricia offers mentoring and courses for nurses who want to become legal
nurse consultants.
Patricia has been a legal nurse consultant since 1987 when she first began
reviewing cases as an expert witness. As a medical surgical nurse, she has
20years of experience testifying in nursing malpractice cases. She continues
to testify to explain medical records.
Patricia achieved national prominence through her texts and many
contributions to the legal nurse consulting field. She was the chief editor of
Legal Nurse Consulting Principles and Practices, Second Edition, the core
curriculum for legal nurse consulting. She completed 5 years on the Board
of Directors of the American Association of Legal Nurse Consulting
including a term as President.
Patricia has written, coauthored or edited more than 180 books, chapters,
case studies, article or online courses.
Reach Pat at patmedleague@gmail.com
___________________________________________________
“I have been a legal nurse consultant colleague of Pat Iyer’s for almost 10
years. She is considered a leader among legal nurse consultants and has
written multiple books on this subject which have offered guidance to us all.
She is highly respected in her profession.”
—Kathy G. Ferrell, BS, RN, LNCC
“Pat is an exceptional person who is highly dedicated and creative. She has
excelled in many areas of health care and pioneered many aspects. It is a
pleasure to be affiliated with Pat.”
—Kathy Martin, Legal Nurse Consultant
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“Patricia is on one of the founders of legal nurse consulting. She has
contributed substantially to the profession’s growth as a leader in the field.
I would highly recommend Patricia in this field.”
—Jane Barone, Legal Nurse Consultant and Author
“I worked with Patricia on a book project as one of her contributors and she
was incredible. Professional and easy to work with — I don’t know what else
a person could ask for.”
—Diane Wiley, Legal Nurse Consultant and Author
“ . . . Great information and very comprehensive. If you need more
information, please look at Pat Iyer’s website and buy some of her
programs. They will be well worth your money.
—Kathie Condon, Legal Nurse Consultant
“Pat is a prolific author, extremely good. I have a shelf in my study
bookcase area that is just hers. I learned a lot from her.”
—Pat Bemis, President of National Nurses in Business
Pat’s legal presentation at the Academy of Medical Surgical Nursing was
thoughtful. It was engaging. It was interesting. It was well-thought out. I
came away from that presentation with a lot of information I can take back
to the staff where I work. We can tweak our practice and we can document
in a more thoughtful manner. I would always go to a presentation that Pat
was a part of.
—Linda Willette, RN
I have had the pleasure and honor of meeting Pat Iyer. She is so
professional. Just watching her has inspired me as a family nurse
practitioner to be more professional. She has given workshops and
speaking engagements. Everyone has attested to her knowledge in the field.
She has written books. I wish that you too could take the opportunity to
meet with her. She has a website. Take advantage of some of the materials
she has to offer.
—Leslie Lee, RN MSN
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24 Nursing Documentation Mistakes
That Could Get You Sued
Introduction
Thank you from downloading this special report. Here is what you will gain from
the information I am sharing with you based on my 25 years of working with
medical malpractice attorneys.
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9 things you need to know about lawsuits
What are the chances the defense will win a trial
Why you need your own nursing malpractice insurance policy
24 nursing documentation mistakes (and how to avoid them)
How you should react if someone asks you to alter medical records
You hate to think of being sued. The reality is that nurses are brought into
lawsuits. We get phone calls every week from attorneys asking for nursing expert
witnesses because a nurse is being sued.
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Improving your charting so that you avoid making these mistakes can make
the difference between a defensible and an indefensible case. The material in this
report is designed to make you more aware of the way the medical record is used
when a medical malpractice suit is reviewed and pursued, and how your
documentation will be scrutinized. I’m giving you a shortcut to what I have learned
in my 25 years of experience testifying in nursing malpractice case as an expert
witness and in supplying attorneys with experts.
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Steps in a Lawsuit
1. Initial Steps
Every lawsuit starts with a plaintiff contacting a plaintiff attorney’s office. The first
step is usually a phone call from the plaintiff. The plaintiff may be the patient if he
or she is alive, or a family member with authority to act on behalf of a deceased
patient. The call is answered by a secretary, paralegal, legal nurse consultant, or an
attorney. There are several questions that are asked by the legal team.
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What happened?
Why do you think that occurred to you?
What's your relationship to the person who was injured?
Are there any injuries?
Are they permanent?
Out of 100 phone calls that come in to a plaintiff attorney's office, only
about 5 cases are investigated. Many can be sorted out over the phone and rejected.
After discussing the facts of the case, the attorney makes a decision about whether
to investigate the possible case and obtain medical records for those cases that
sound like they might have merit.
2. Medical Records Review
The plaintiff attorney might request a copy of the chart or might ask the patient or
family member to obtain it.
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4 elements
There are four aspects of a valid medical malpractice suit:
Duty: A duty must be owed to the patient. The duty is usually established when
you agree to take care of the patient and accept responsibility for the care and
treatment of the patient.
Breach of Duty: A breach of the duty (or the standard of care) occurs. The
standard of care is a nursing one. A breach of the duty is a negligent departure
from the established standards of care, which are established by your professional
organizations and texts. It is the failure to do what a reasonable prudent nurse
would do in the same or similar circumstances.
Causation: Causation or proximate cause or a causal relationship, must be
apparent between the breach of the duty (SOC) and the damage (harm or injury) to
the patient. A nursing malpractice cause of action requires proof by the plaintiff
that the failure of the care was the proximate (immediate) cause of the alleged
injuries. This is often a difficult area to prove.
Damages: The patient suffered physical or psychological injuries. They may be
temporary or permanent. The greater the damages, the more attractive the suit is to
the plaintiff attorney.
One of the first aspects of the case the plaintiff attorney reviews is the
damages or injuries to the patient. If the injuries are serious and permanent, the
attorney may have medical professionals review the chart. The attorney may ask a
legal nurse consultant (LNC), who is a consultant and not a testifying expert, to
make an initial evaluation of the records. Alternatively, the attorney may bypass a
review by an LNC and hire an expert witness to make the initial review. They try
to figure out what happened and if the case has merit.
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What care was actually given?
Was it given timely?
Was it appropriate?
What was the cause of the complication or the problem?
The contents of the medical record are crucial. Something that you wrote a
year ago will be scrutinized. You never know whether a medical record is going to
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be reviewed in a plaintiff attorney’s office. The information in the medical record
is going to help or hurt you.
The charting in this case resulted in difficulty defending the nurses.
A seventeen-year-old man underwent resection of cancerous portion of his
jaw using bone that was harvested from his right fibula. Muscle, arteries and
veins were also removed from the leg. The leg’s wound was closed with the
application of skin which had been harvested from his right thigh. The leg
was unwrapped after six days. Two ulcers had developed on his right foot.
Despite debridement and physical therapy, the ulcers progressed and
damaged his right foot tendons. He claimed the leg’s splint and wrapping
caused compression which created a likelihood of the development of ulcers
and swelling. The plaintiff contended that the hospital’s protocols for
treatment of a patient with a splint were not followed in that the leg was not
kept elevated and the staff did not inspect the splint regularly. The plaintiff
argued that his chemotherapy for his cancer was interrupted by treatment of
the ulcers.
The defendant claimed that the patient was properly monitored and that
neither doctors nor nurses noted any symptom which warranted earlier
removal of the splint. The defendant also claimed that earlier removal of the
splint would not have changed the outcome. The defendant also maintained
that the progression of the ulcers was an unpreventable complication of the
chemotherapy. The jury returned a $5.7 million verdict. 1
Nursing notes should have had details about the elevation of the leg,
circulation to the toes, and methods used to prevent pressure on the leg.
Contributory or comparative negligence
In some cases the medical records hurt the patient. Some states recognize
contributory negligence as a complete block which prevents the plaintiff from
getting any money. If the plaintiff did anything that could be perceived by a jury as
having contributed to his own injury, even if the blame is 1%, the plaintiff gets no
Laska, L. (ed), “Failure to properly monitor splint on leg when graft was taken for use in jaw
reconstruction necessitated by cancer of mandible”, Medical Malpractice Verdicts, Settlements
and Experts, August 2013, pages 13-14
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1
money. Most states have rejected contributory negligence because it bars the
plaintiff’s right to any money. Only a few states use this defense.
In comparative negligence, the jury weighs the plaintiff’s negligence against
that of the defendant’s and reduces plaintiff’s damages accordingly – a jury can
assign a percentage of fault to the plaintiff and deduct the amount from any award.
Contributory or comparative negligence is based on the actions of the
patient. For example, if an ambulatory care nurse documented the patient was
advised to immediately go to the emergency department, and he refused to do so,
that documentation is going to be very helpful to the nurse.
My attorney clients carefully look at notations of noncompliance. If some of
the blame is going to be shifted to the plaintiff that affects how the case is going to
be handled or if it’s going to be filed at all. A plaintiff attorney may turn down a
case involving a patient who was responsible for his own injury. This is why it is
so important to document instructions you give a patient.
In this case, the defense strategy was to blame the patient. If the blame is
convincing enough, the jury will not award any money to the plaintiff:
An eighteen-year-old college student went to the Ohio University Hudson
health center because she was not feeling well. She was advised to use an
over the counter medication and get some rest. She worsened and was taken
to a hospital. A lumbar puncture confirmed the diagnosis of Type B
meningitis. She was transported to another hospital by ambulance; the
ambulance was not equipped to intubate her when she began having
respiratory difficulties. She arrived at the second hospital in a hypoxic and
non-responsive state. She died 3 days later.
The plaintiffs claimed the lumbar pressure increased her intracranial
pressure and contributed to her death. The plaintiff also alleged negligence
in transporting a patient in an ambulance not equipped for intubation. The
defendants claimed that the actions taken were appropriate and that the
decedent’s delay in seeking care had contributed to her death. The jury
returned a defense verdict. 2
2
Laska, L. (ed), “College student dies from bacterial meningitis”, Medical Malpractice, Settlements and Experts,
August 2013, page 12
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3. Filing Suit
In some states the attorney has the case reviewed by a healthcare professional
(expert witness) of the same background as the defendant before filing suit. If this
professional believes the case has merit, and the state laws require it, the expert
witness files an affidavit of merit stating the case has merit. Filing the suit starts
with a complaint that identifies the alleged deviations from the standard of care,
the damages or injuries, and the demand for money.
4. The Defense Attorney Responds
The defense, once notified of the claim, reviews the complaint and formally
responds to it. This begins the discovery phase and the time frame when the
healthcare professional finds out he or she is being sued. The plaintiff attorney is
entitled to ask for documents, such as policies and procedures, job descriptions,
and incident reports, which the defense attorney has to supply. Each side asks
questions of the other, called interrogatories.
5. Depositions
The plaintiff’s deposition is taken, under oath in front of a court reporter, to gather
information about what happened. The plaintiff is also usually asked how the
injuries have affected his life.
The depositions of the defendants, family members, and others with
knowledge about the events are taken. The defendant doctors, nurses, and other
healthcare professionals are deposed. The defendant’s attorney prepares the
professional for the types of questions that may be asked. Fact witnesses may also
be deposed. These might be, for example, other nurses who worked in the
healthcare setting with the defendant(s).
6. Expert Witnesses
Each side hires expert witnesses to review the case to form their own opinions
about the care that was provided. The use of expert witnesses, written reports and
expert depositions varies greatly from state to state. In some states, the expert
writes a report stating those opinions; each side provides the other with their expert
reports. In almost all states, nursing expert witnesses (as opposed to physicians)
evaluate the care of the nursing defendant. A physician expert is often used in a
nursing malpractice case to determine if the injuries were caused by negligence. In
many states, the laws permit taking the deposition of the expert witness. This
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individual is questioned under oath by the attorney on the opposing side. The
attorney evaluates the expert’s demeanor, strength of conviction, and credibility.
7. Settlement
To recap, plaintiff attorneys reject about 95% of the cases brought to them. They
investigate a small number (5%) by getting medical records and asking LNCs or
experts to look at these cases. They accept some of these cases and reject others
after the review.
Of the cases plaintiff attorneys accept, the vast majority are settled.
They are meritorious claims that have met the four elements: duty, breach of duty,
causation and damages. Insurance carriers typically settle claims because they
know the cases have merit and there is a risk of putting a valid case in front of a
jury, who could make a large award. Sometimes the attorneys reach an agreement
that the names of the defendants and even the settlement amounts will be kept
confidential.
8. Trials
Cases that go to court are either ones that the defense thinks are non-meritorious,
or the amount of money the plaintiff has requested is out of proportion to what the
defense and insurance carrier think is reasonable. The cases that go to court
represent a small percentage of all cases that are filed. A trial is a long, expensive
undertaking.
The case is heard at trial by a judge (“a bench trial”) or before a jury of 8-12
people. There are opening statements by both sides. The plaintiff’s attorney goes
first to present her case. The defendants and fact witnesses testify. First, the
witness is questioned by her attorney. This is called direct examination. The
opposing attorney then has the chance to ask the witness questions (cross
examination). The expert witnesses testify as well.
The jury hears all of the evidence. In some courtrooms, they are allowed to
take notes and even write out their own questions of a witness. After the plaintiff
has finished presenting her case, the defense presents his case and calls witnesses.
The attorneys may use exhibits in the courtroom to illustrate points and help the
jury understand the medical issues of the case. The trial ends with closing
statements by each attorney. Next, the judge explains the law to the jurors and the
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task before them in reaching a decision about the case. The jury goes to a room and
discusses the case until they reach a verdict.
The jury may decide the case for or against the plaintiff. If they decide the
plaintiff has proven his case and won, they award compensatory damages (money).
Rarely do they award punitive damages, which are designed to punish the
defendant for behavior that is shocking. Punitive damages are not paid for by the
insurance policy that your employer carries. Punitive damages are paid from the
budget of the facility or wallet of the defendant.
Punitive damages were awarded in this case:
A man was admitted to a hospital because he was to be weaned from the
ventilator. Several days after admission, a nurse attempted to move him from
his bed to the bedside commode. During the process the patient’s
tracheostomy tube was dislodged and his airway compromised. It was about
thirty-five minutes before his airway was restored. He died. The plaintiff
alleged negligence in the transfer, contending that two people were required
to transfer this obese man, not the one person who tried. The hospital
claimed that here was no negligence, but there appeared to be some
differences in the nurses’ recollections of the incident. The arbitrator found
the hospital negligence in using the one person assist for such a totally
dependent patient. The arbitration ended in a $463,570 verdict which
included $225,000 in punitive damages. 3
The defense wins about 80% of the cases that go to trial. There are
occasionally issues that arise during the trial that form the grounds for an appeal of
the decision. At times, the defense appeals the size of a verdict.
The law in your state, the strategy of the attorneys, and the facts of a case
may alter this typical pattern of a lawsuit. A suit may take 3-5 years to reach a
conclusion.
9. Insurance
Many nurses ask me if they should have their own malpractice insurance policy. I
3
Laska, L. (ed), “Man’s tracheal tube dislodged during one person assist from bed to commode”, Medical
Malpractice Verdicts, Settlements and Experts, September 2013, page 15
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recommend that nurses arrange for an insurance policy independent of their
employer’s coverage. There are three reasons for this.
1. Your activities as a nurse are not covered if you provide nursing care outside
of your role as a nurse. If you give advice as a neighbor or friend, and that
advice is negligent, you may be sued. Your employer’s policy will not cover
you as you were acting outside the scope of your employment.
2. Your employer’s policy will not cover you if you are required to appear
before the Board of Nursing for any reason. Your own insurance policy
should provide you with representation from an attorney to represent you at
the Board of Nursing hearings.
3. Policy premiums for nurses are relatively inexpensive, except for nurses
working in high risk areas (such as labor and delivery) or high risk roles
such as advanced practice nurses. For most nurses, insurance offers
inexpensive peace of mind.
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24 Nursing Documentation Mistakes
Now that you’ve learned about the crucial role of the medical record in a lawsuit,
you may be asking yourself what you can do to reduce your chances of being
brought into a lawsuit. Use these tips to strengthen your charting.
1. Charting on the Incorrect Record
Make sure you are opening the correct paper or electronic medical record. In paper
charts, addressographs or name plates are used to stamp each page of the record. In
emergencies, the healthcare professional often will grab a page, handwrite the
patient's name on the sheet, and stamp the page later, if at all. Potential for error
exists when you document on a sheet and then inadvertently stamp it with another
patient's name.
2. Not Dating, Timing and Signing Entries
Medical records must contain the date on which the entries were made. It can be
very difficult to piece together a multipage flow sheet if the date is not
documented on every page. Timing can be an important factor in many nursing
malpractice suits, as the following case shows.
The plaintiff’s decedent, age forty-three, went to a hospital for the delivery
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of her third child. She was at high risk for a ruptured placenta due to
placenta accrete. She had been scheduled for a cesarean section delivery.
The woman went into labor and underwent a cesarean section delivery
followed by a hysterectomy. Complications arose and she died three days
later. The plaintiff claimed that the defendant's staff failed to timely perform
the hysterectomy. The plaintiff maintained that the plaintiff’s risk factors
required a hysterectomy tray, blood transfusions and other medical devices
be prepared prior to the cesarean section in case a hysterectomy was needed.
The plaintiff argued that the hemorrhage occurred almost immediately after
delivery, but the hysterectomy was performed about thirty minutes later.
The defendant denied any negligence and maintained that the hysterectomy
was performed immediately after the cesarean section. The plaintiff and defendant argued over the timing of the hysterectomy based on a nurse's note
(there were no times for the procedures in the anesthesiology charts) which
had 3:49 p.m. written as the time the hysterectomy ended, which had been
crossed out and 3:15 p.m. written above it. According to a published
account a $950,000 settlement was reached. 4
Your name should appear at the end of each chart entry. It will be evident if
one chart note covers all or most of a shift because there will be only one signature
to document all that happened during that extensive period of time. If you charted
at various times during the shift, each entry should have a date, a time, and a
signature. This gives any reader of the chart a better understanding of what
happened during the shift.
When you are writing on a paper record, sign your entries with the first
initial of your name, followed by your last name and status such as RN, SN, LPN,
SPN (student practical nurse), and so on. Draw a line through any empty space on
the line between the end of their charting and the beginning of your signature to
prevent someone else from inserting words into your entry.
When your charting continues from one page to the next, sign your name at
the bottom of the first page. The top of the next page should be dated, timed and
4
Laska, L. (ed), “Failure to timely perform hysterectomy on woman with bleeding due to
placenta accrete following cesarean section delivery”, Medical Malpractice Verdicts, Settlements
and Experts, March 2010, page 26
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include the words "continued from previous page." If you does not do this, or
follow a different method of contiguous charting, the difference should be
supported by your employer’s documentation policies.
Many facilities request nurses to document using military time (0200 instead
of 2:00 AM) in medical records. Most healthcare facilities have chosen this style of
documentation. Medical records documented in military time eliminate much
confusion about the time of day of the events in question.
3. Cosigning Notes Without Reading Them
Student nurses' notes are frequently cosigned by the instructor. Cosigning implies
that the instructor approved the care given, and assumes responsibility for it. See
below for an example of the correct identification of a student nurse's entry and the
use of lines to fill in blank spaces.
11:30 AM Back from physical therapy. Complains of weakness and fatigue. P.
Watson SN MCC/L. Hill RN
The recommended procedure for cosigning is as follows: the student writes
the note and signs it with the first initial, last name, S.N. for student nurse, and the
name of the school. Students should write the initials or abbreviated name of their
nursing program, i.e., "MCC" for Mercer County College. After reading the note
and drawing a slash, the instructor signs the note with the first initial, last name,
and R.N.
Tip: Cosigning an entry on a medication record means the instructor is accepting
the responsibility that the patient received the correct medication.
If an instructor signs an entry without reading it or overlooks a problem the
entry raises, she or he could share liability for any injury that results. Lawsuits in
which student nurses are named are rare. However, if a plaintiff initiates a suit
against a student, the instructor, school, agency, physician, and other nurses may
be included as well.
Although student nurses provide nursing care, the healthcare organization's
nursing personnel are ultimately responsible for the patient. The fact that a student
nurse was assigned to the patient does not absolve the nursing staff from their
obligation to document important observations or nursing interventions.
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Cosigning also occurs in situations where a nurse is being precepted or
mentored by another nurse. This is usually done in situations when the nurse is
new to a unit or to a procedure. Nurses who cosign accept the same responsibility
for the nurse’s actions as nursing instructors.
4. Using Illegible or Sloppy Handwriting
Illegible and sloppy handwriting can cause confusion, miscommunication, and
medical error during the care of a patient. It can be the reason a record finds its
way into an attorney’s hands. Sloppy, illegible handwriting complicates both
plaintiff and defense attorneys’ work. It makes screening of the nursing
malpractice case for merit more difficult; it interferes with your defense when you
are a defendant in a nursing malpractice case.
The challenge of deciphering illegible handwriting is one of the biggest
complaints of attorneys who are trying to interpret what could be an essential entry
in the medical record. The plaintiff’s attorney can request that you transcribe the
handwriting once a case is in suit. Some plaintiff's attorneys save this for the
deposition of the defendant nurse.
Tip: The plaintiff's attorney may enlarge a page containing illegible nurses' notes
and use it to cross examine a nurse defendant on the stand. The attorney can lead
the defendant through a cross examination on the importance of the medical record
for communication, and draw out a concession on why handwriting should be clear
and legible. Nurses who cannot read their own handwriting are particularly
vulnerable to this line of questioning. Electronic medical records eliminate the
difficulties caused by illegible handwriting.
5. Using Incorrect Spelling and Grammar
Medical records that are filled with misspelled words and incorrect grammar create
negative impressions about your abilities. They imply that you have a limited
education or intellect, or are careless and distracted when charting. Spelling and
grammatical errors can be enlarged into poster size if they are related to the alleged
acts of negligence, and the errors pointed out to the jury.
6. Using Unauthorized Abbreviations
Abbreviations, acronyms, and symbols have often been the source of confusion
and misinterpretation in medical records. At times they lead to medical errors.
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Some problems have occurred because incorrect interpretation of abbreviations or
symbols was caused by illegible handwriting; other difficulties have arisen when
practitioners use abbreviations which are not approved by the facility.
Institutions which are accredited by The Joint Commission (TJC), and many
who are not, are engaged in a process to reduce the number of abbreviations
allowed in their organizations. This movement has had strong backing by NAHQ
(the National Association of Healthcare Quality), AHRQ (the Agency for
Healthcare Research and Quality, US Department of Health and Human Services),
as well as many other national organizations devoted to quality improvement and
patient safety.
The national and institutional focus on abbreviations has not gotten rid of all
incorrect abbreviations, however. Unapproved abbreviations enter the organization
when new healthcare personnel come on staff, and during moments of levity or
black humor (used to cope with traumatic events). All of this information can make
a nurse who uses an incorrect or dangerous abbreviation look like he or she does
not keep up with the profession.
Employers have a responsibility to update their staff, to ensure that the
policies of the facility are revised to conform to TJC National Patient Safety Goals,
and to provide education to nursing staff on their important role in ensuring
compliance with the Goals.
7. Long Delays in Charting
Large gaps in documentation times raise the suspicion that information was not
promptly charted or that information was left out. Plaintiff attorneys are often fond
of asking nurses if the documentation was done at the time of the events or at the
end of the shift. Asking this question can fluster a nursing witness who may have
difficulty explaining to a jury how charting gets done on a timely or untimely
basis. Although it is sometimes possible to document on the medical record as
events occur, more frequently nurses chart during the middle of the shift, at the end
of the shift, or on worksheets as events conclude. Information on the worksheet is
later entered into the medical record.
Each healthcare facility should have specific rules for recording information
which you have captured over a period of time. An attorney who is reviewing
documentation for a case may find that the timeline of events portrayed by the
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chart does not make sense or does not match the recollections of other people. In
these situations, the attorney may obtain the facility’s documentation policies for
use in taking your deposition.
Tip: When there is a question about the accuracy of the medical record, the
plaintiff attorney may ask you whether the entry was made at the time given in the
time column, or at the end of the shift. The attorney may ask you if a worksheet
was used during the course of the shift, and if you saved the worksheet. The
worksheet may contain important data that never made its way to the medical
record. Nurses also refer to the worksheet as the "cheat sheet" because it is a
shorthand notation of the patient's needs and the critical data. HIPAA regulations
now discourage removing worksheets from the building in which you work, out of
concern that sensitive patient information may be discovered.
8. Leaving Blanks on Forms
Flow sheets at the patient's bedside or bedside computer terminals make it easier
for you to record important information promptly before it is forgotten or
overlooked. While providing easy ability to document a large amount of
information in one place, flow sheets also have inherent weaknesses. Facilities and
nursing departments tend to design flow sheets to accommodate many pieces of
data in a small space; unfortunately, the data is often redundant. The flow sheet
may be in a paper or electronic form. The electronic forms may require you to
click through a large number of screens. Thus, a nurse caring for a patient has
many small boxes in which to record vital signs, medications, neurological signs,
the status of the bed rails (up or down), the status of various alarms (on or off), and
so on. Flow sheets of this nature vary from department to department and facility
to facility. The almost mindless repetitiveness of completing them does not vary.
The absence of flow sheet data affected the resolution of this Virginia case:
The plaintiff was a fifty-four year-old woman who had no history of
urological problems. After she underwent a craniotomy to resect a
meningioma, a Foley catheter remained in place. After the Foley was
discontinued, nurses were to monitor the plaintiff’s intake and output. The
nurses’ notes did not include all void totals. The plaintiff was eventually
straight cathed with a return of a large amount of urine. The plaintiff’s
bladder was scanned and noted to have retention of over one and one-half
liters of urine. There was a significant discrepancy between the recollection
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of the nurses and of the plaintiff and her husband. The plaintiff was
discharged with a Foley in place. The plaintiff’s overdistended bladder
injury was permanent. She is unable to void on her own and must selfcatheterize every four hours. She received a $1.1 million settlement. 5
This case raises questions about what happened to the data. We would
assume that someone emptied a bedpan, commode or instructed the patient to
urinate in a collection device. The large amount of residual urine revealed an
ineffective voiding pattern.
Nurses will often look for ways to shortcut the seemingly endless number of
empty boxes on a flow sheet. A favorite time saver is filling in one box and then
drawing a line through all the other boxes on that line or column for that shift,
indicating that all values were the same for each time checked. Nurses who enter
information into a computer terminal may get “click happy” and check boxes that
should not be checked. Attorneys can attack this method of charting by asking
directly, at deposition or trial, “Did you check this value each hour (or 15 minute
period, as indicated on the flow sheet)?” Or they may point out the inaccurate
information you checked.
Another problem encountered with flow sheets is gaps in charting. Just like
nursing progress sheets, where lines must be drawn between the end of charting
and your signature, no empty spaces may be left on a flow sheet. An attorney can
question you about this lack of documentation at deposition and at trial.
Forms are also a popular chart format. Though not as large or as complex as
a flow sheet, a form also allows routine documentation to be condensed onto one
sheet or set of screens. Even though they are simpler, forms have all the
weaknesses of flow sheets. Nurses are tempted to leave blanks in forms or they
may fail to document something that is significant. If there is a blank to be filled in
on a chart form, nurses are taught to fill it in, or draw a line through it if it is not
applicable. A blank space raises questions that complicate the patient’s immediate,
and any future, care. However, the pace of daily practice may make cutting corners
seem attractive. Therefore, the plaintiff's attorney may argue that there was an
important observation or element of care that was omitted. The defense attorney
Laska, L. (ed), “Woman suffers overdistention of bladder after surgery due to failure to monitor
intake and output”, Medical Malpractice Verdicts, Settlements and Experts, September 2013,
page 15
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5
may discover in talking with you that you cannot remember why the medical
record is incomplete. Blank spaces can have a critical effect on the case.
Absence of documentation was an issue in the following Florida case:
In Susan Meek. V. Southern Baptist Hospital of Florida, Inc. d/b/a Baptist
Medical Center, the forty-two year-old plaintiff was admitted to the hospital
for a hysterectomy. After surgery she developed bleeding and was taken the
radiology department for uterine artery emoblization to stop the bleeding.
The physicians ordered the nurses at the hospital to perform frequent leg
examinations to detect possible diminished blood flow and nerve injury, a
known complication of the procedure caused by clotting of the external iliac
artery due to arterial wall injury. The plaintiff claimed the leg examinations
were not performed based on the lack of documentation of the exams.
Permanent nerve injury developed after a massive clot in the external iliac
artery was removed. A $1.55 million verdict was returned. 6
9. Improperly Adding Late Entries
Few parts of the medical record are scrutinized by attorneys more closely than late
entries. Key information is often contained in a late entry. Nurses make late entries
when they remember important information that needs to be added to the medical
record after documentation has been completed. For example, after completing
charting, you may review the entry and realize that something crucial was left out.
On rare occasions, you completely overlook a particular chart and do not realize
until the next day that documentation had been omitted.
Late entries are also written when there has been a poor patient outcome and
the healthcare professionals are worried about being sued. (This is commonly
called "buffing the chart.") It is this type of late entry that is the greatest concern to
risk managers and attorneys. These entries are usually recognized with ease
because of the length of time between the event and the entry, and because of the
tone of the entry itself. Invariably these chart entries are made by a physician or
nurse to “explain” what really happened. No matter how sincere the writer is in this
effort, the documentation often looks like an effort at a cover-up.
Laska, L. (ed), “Failure to perform exams on legs following uterine artery embolization”,
Medical Malpractice Verdicts, Settlements, and Experts, July 2005, page 15
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6
The practice of leaving blank lines is discouraged. If the need arises to add
information to the medical record out of sequence or at a later date than the shift on
which you provided care, you are supposed to do the following:
1.
Add the entry to the first available line.
2.
Identify the time you are making the late entry. Start the entry with the
words "Late entry for (date and time)”.
When I teach programs to nurses on documentation, they often ask me,
"When is a late entry suspect?" The rule of thumb is the sooner you add a late
entry, the better.
Late entries should not be squeezed into an existing note or placed in the
margins. Plaintiff and defense attorneys will scrutinize late entries. The plaintiff
attorney may attempt to prove that you tried to alter a record to cover up an error
instead of making an addition.
Tip: Late entries can look self-serving; they often look like they are written in
response to fear of liability, particularly when the patient has had a bad outcome.
Your employer’s policies and procedures usually describe the proper way to add
information to the record. Know your employer’s policies.
10. Documenting Omitted Care or Medications
Facility policies and procedures specify the protocol for documenting omitted
medications or treatments. You are responsible for documenting why you did not
perform a treatment or give a medication. In most cases omitted medications are
documented on the medication administration record. This is usually done by
drawing a circle around your initials in the block that corresponds to the omitted
dose or placing an electronic entry on the medication administration record. The
reason for the omission should be written in your notes. Omitted treatments are
supposed to be recorded in your notes as well.
When medications or treatments were omitted because of a busy shift or
short staffing, it is likely that there was little time to document the reasons for
omissions in the progress notes. Therefore, this information will often be missing.
Your defense is complicated when the reasons for the omissions are not provided;
and conversely, plaintiff’s counsel can often use the absence of information to his
benefit.
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11. Charting in Blocks
Block charting occurs when you enter a broad time frame in the “time” column in
your notes, such as "4 a.m-6 a.m." or "3 p.m.-11 p.m." This type of charting is
disappearing because nurses are instructed to enter accurate times next to their
entries.
Although it initially seems innocuous, block charting makes it difficult to
establish when certain events occurred and permits the plaintiff’s attorney to
question you about the exact times that the events occurred. When you have no
recollection of the events, a block charting entry provides no help.
If the chart does indicate that an event occurred during the block of time, this
type of charting usually gives no details as to the sequence of actions. During
questioning the plaintiff’s counsel is free to ask you anything about the event and
you have little hope of being able to respond with clarity.
12. Improperly Crossing Out Mistaken Entries
Most entries that are marked as an error or mistaken entry are purely innocent
mistakes. Nurses may pick up the wrong patient's chart or enter the wrong patient’s
electronic medical record, only to discover they are documenting on the wrong
record part of the way through charting. Spelling mistakes or the use of the wrong
word are also common errors. In the past, before a lot of attention was paid to this
issue, nurses corrected these errors with correction fluid or black markers. As a
result of education, most nurses understand the proper way to correct mistaken
entries.
It is common practice to remove correction fluid from any areas containing
medical records. A director of medical records told me that a physician asked a
medical records clerk for a bottle of correction fluid. The clerk came to her boss to
ask where it was kept. The medical records director was able to thwart the doctor's
plan to alter the records. All staff, including unit secretaries, should understand
why correction fluid cannot be used on medical records.
Following is the recommended approach for correcting mistaken entries:
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1.
Draw a single line through the entry so that it is still readable. It should
never be crossed off with a heavy marker, heavily scratched out, or covered with
correction fluid.
2.
Write the word "mistaken entry" above or beside the original words. The use
of the word "error" is no longer advised because juries tend to associate the word
"error" with a clinical error that affected the patient.
3.
Place the date and your initials next to the words "mistaken entry” or “M.E."
4.
This process is made easier when the abbreviation "M.E." for "mistaken
entry" is added to the list of approved abbreviations in use in the facility.
An alteration should be made only to truthfully document the care provided
to the patient or to protect the patient's interests. Changes should not be made
purely to justify decisions after the fact or for other "cosmetic" reasons. Generally
an appropriate late entry may be made if it is clearly documented that it is a late
entry, if it is dated correctly, if it can be justified, if it does not attempt to falsify
the record, and it is signed by the recorder. 7
13. Making Inappropriate Comments
When a patient’s care is handled by more than one physician, and those physicians
are not in agreement on the best way to manage the case, disagreements can
surface in the chart’s documentation. Similar conflicts between nurses, between
hospital units or departments, or between staff and physicians can occur.
Statements might be written in different ways in the chart, but they most often take
the form of finger pointing and accusations.
For example, I recently read a physician note by an infectious disease
consultant who was angry that the nurse gave the first dose of antibiotics before
blood for a culture was drawn in a hospital. He made his disgust very apparent in
two chart entries. He overlooked the fact or did not know that blood cultures were
done two days before the patient was admitted to the hospital. The situation was
worsened when the family became aware of the physician’s anger and believed the
nurse’s actions harmed their family member. This was a factor in their decision to
find a plaintiff attorney.
Some finger pointing notes are written boldly, while others are done in a
more subtle fashion. Documentation of this nature is often made in disgust, anger,
7
“Punitive damages allowable for record alteration.” Journal of Healthcare Risk Management,
pgs. 43-45, Winter 1995.
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or exasperation. Three common situations in nursing malpractice cases can give
rise to finger pointing by another person:
1.
The patient has been injured
2.
The patient could have been injured
3.
The plan of care or the physician's orders has not been carried out and the
individual is trying to cover him or herself.
The mere presence of an inappropriate comment does not mean that the
patient has suffered from an injury. Risk managers spend a great deal of time
educating healthcare professionals about the consequences of inappropriate
comments and accusations. Aside from memorializing what could be an inaccurate
description of the events, finger pointing draws attention to what could be a minor
omission with no untoward effects on the patient.
Tip: Evidence of fighting among healthcare professionals facilitates the job of
developing a case for the plaintiff’s attorney and can create nightmares for the
defense.
14. Not Describing or Reporting an Incident
Incident reports are typically available to the plaintiff attorney only after a case has
been filed. Attorneys make assumptions that incident reports are written after
untoward events, and will request the incident report after suit has been initiated.
Covering up an incident makes the case much harder to defend. The
conclusion is that the healthcare provider is trying to hide something and is acting
in a guilty manner. Hiding an incident is far worse than acknowledging it.
Although the attorney reviewing a chart may know or suspect that an
untoward event has happened to the patient, the chart may not give a clear picture
of what happened. In fact, it may seem impossible to find evidence that anything
out of the ordinary happened at all.
In Estate of Gladys Forbis v. Pavilion Health Care Center, the nursing home
resident was suffering from Alzheimer’s disease. The cause of her death was
asphyxiation from blood which traveled into her lungs from a cut on her lip.
There was no direct evidence about precisely how the cut was sustained. Her
estate claimed it was the result of trauma, and the plaintiff pathology expert
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opined that the lip injury was either inflicted or related to the failure to use
softer restraints. He doubted the cut was in any way self-inflicted. The
plaintiff alleged the nursing home provided substandard care and had treated
the decedent with reckless disregard. The defense pathologist denied the
death had been the result of aspiration, whereas another defense expert
testified that the resident could have bitten herself. The jury awarded $2.2
million. 8
Absent documentation is one of the biggest sources of frustration for
attorneys involved in nursing malpractice cases. The medical record may also
contain more than one version of the events in question. To complicate matters,
these versions may be incomplete, and the plaintiff may have an entirely different
version. A description of the event may be recorded in the following places:
 Nursing progress notes
 Physicians' progress notes written by the house physician or doctor who
examined the patient right after the injury
 Attending physician's version in the progress notes
 Operative report if the injury occurred in the operating room (OR) or
resulted in a trip to the OR
 The discharge summary
 Logs (OR, labor and delivery)
 Progress notes of ancillary staff (respiratory, physical or occupational
therapists)
 In a subsequent medical record
The attorney and expert witness defending you will look in all of these
places to determine what was written about the incident. Prescriber order sheets
and all progress notes will be read for references made to an incident report.
Document an incident immediately when details are fresh. The details
should include:
 the time of the incident,
8
Laska, L. (ed), “Alzheimer’s patient asphyxiates on her own blood drained into her lungs from
trauma-induced blow to her lip”, Medical Malpractice Verdicts, Settlements, and Experts, April
2004, pages 41-42
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 what happened,
 the name of the physician who was notified of the event,
 the physician’s response (physician orders given or whether he or she came
to examine the patient),
 follow-up care, and
 the patient's response to the treatment which was ordered.
Be very cautious in documenting an incident and do not offer opinions, place
blame or make accusations regarding the events associated with the occurrence. In
some situations, nurses fail to record the facts of an occurrence in the chart. This is
often due to their concern about appropriate documentation of an event and their
conclusion that no documentation is better than incorrect documentation, or the
conclusion that documenting an event will get them into trouble.
Unfortunately, lack of documentation of an event more often than not will
look like an attempt to cover up the occurrence. A random sample of twenty-six
medical residents who were involved in medical errors showed that of 73 cases,
only 30 (41.1%) formally acknowledged and documented the error in the medical
record. 9 Lack of clear cut documentation about an incident also complicates the
ability of all parties to figure out what happened; this includes not only the after the
fact reviewer, but concurrent and subsequent caregivers.
Juries make decisions about nursing malpractice cases based on the
credibility of the plaintiff as well as the perceived accuracy of the medical record.
Documentation that is prepared as events are unfolding before the outcome is
known is presumed to be more accurate than memories of the event.
"Incident report filled out"
Document details of the incident in the medical record with an objective
description of the events free of accusations or self blame. Self-blaming statements
include words like "I was tired and distracted and therefore . . ." The incident
report should contain the same details as the medical record does, including a
physician's examination of the patient if warranted by the circumstances. Do not
document that an incident report has been completed. Discoverability of the
incident report varies from state to state, though it has become increasingly
9
Rosenthal, M., P. Cornett, K. Sutcliff, and E. Lewton, “Beyond the medical record: other
modes of error acknowledgement”, J. Gen Intern Med, 20 (5) May 2005, pages 404-409.
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difficult to protect as a result of changes in state laws and court decisions in a
majority of states.
The premises behind not referring to the incident report in the medical
record are:
 The opportunity to maintain the confidentiality of the incident report may be
lost if the report is mentioned in the medical record or incorporated into the
record by reference to it.
 If a plaintiff attorney sees a reference to an incident report, it will draw
attention to an incident that might otherwise be overlooked. For example, the
attorney may be investigating a case involving a fractured hip that occurred
after a fall from a stretcher. In a separate incident, the patient may have
received the wrong medication. The attorney may not be aware that the
second incident occurred in the absence of a reference to the incident report
that was prepared.
Increasingly, healthcare professionals are recognizing their responsibility to
inform the patient and family when an untoward outcome occurs, as is required by
Joint Commission standards. Controversy and anxiety surround the nature of the
disclosure of a potential medical error and the impact on a possible lawsuit.
Documentation in progress notes becomes part of the evidence of the event. Do the
following:








Describe the event in factual terms.
Avoid using the medical record as an emotional catharsis.
Record only known facts, avoiding speculation.
Avoid recording opinions that a particular event caused a specific
result.
Describe any discussions held with the patient or family.
Record the facts of the disclosure discussion - who was there, when it
was held, the facts that were presented.
Avoid documenting suppositions.
Note the next steps to be taken. 10
“Disclosure: what works now and what can work even better”, ASHRM Journal Vol. 24, No.
1, 2004 pages 19-26
10
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15. Not Charting Care Given by Others
Describe the care you have given or supervised. As the licensed nurse, you are
responsible for documenting the care provided by unlicensed assistive personnel
(UAP). In some settings the UAP are allowed to document on flow sheets. For
example, in a long-term-care facility the UAP may document the type of bath that
was given or the activity of the patient (out of bed, bed rest, etc).
A paper medical record might not include the names of UAP who gave the
patient care, and documentation rules do not usually require that they do so.
Electronic medical records do include the UAP’s name. However, when a specific
occurrence happens and a UAP has reported facts you, it is appropriate that you
record the UAP’s name in the patient’s record as the source of the information.
When this information is not present in the chart it may be difficult to obtain after
the fact.
16. Revealing Bias in Documentation
Sooner or later every plaintiff's attorney who screens nursing malpractice cases
will hear complaints about the way nurses interacted with the patient or family.
Sometimes these complaints are based on unrealistic expectations about the level
of nursing care that can be provided. However, antagonism can and does develop
between nurses and patients and their families.
Tip: Words that reveal negative attitudes toward the patient include: complainer,
abusive, drunk, lazy, spoiled, problem patient, demanding, obnoxious, nasty, and
disagreeable. If a jury reads progress notes with these types of words, they may
infer the patient received substandard care because you disliked the patient.
Describe the patient's behavior objectively. For example, instead of charting
that the patient was obnoxious, describe the specific behavior of the patient, such
as swearing, verbally abusive, or demanding constant attention. The attorneys
involved in the case will carefully evaluate the effect of documentation which
reveals antagonism between the patient and you. This could be a significant factor
in the resolution of the case.
17. Not Communicating With the Provider (Physician, Physician Assistant,
Nurse Practitioner)
The care of a patient depends on clear communication, both verbal and written.
Miscommunication is one of the most frequent causes of untoward events. Many
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nursing malpractice cases involve liability situations in which the communication
between the nurse and the provider is the center of the problem. You are expected
to monitor the patient’s condition and notify the patient’s provider of pertinent
information, using judgment about when and what to communicate. Depending on
the situation, communication may be in person, by phone, or through
documentation. Urgent situations require notification in person or by phone. 11
Frequently, nursing malpractice cases deal with what the provider was told
about the patient's condition, particularly when deterioration results in a poor
outcome for the patient. The nursing malpractice case may hinge on this point.
Issues include:




Should you have called the provider and was the call made?
What did you say?
What time was the call made?
What should you have done next?
1. Should you have called the provider and was the call made?
The role of the professional nurse includes communication of important
findings to the provider. A multiplicity of factors complicates this simple
statement. The factors that influence this phone call include:
 Did you have the critical thinking skills to recognize that a call should be
made?
 Did you personally make the call or did you ask a nurse manager to call?
 Did the provider receive the message that you called?
 Was accurate information conveyed to the physician?
Let’s look at a case involving communication.
The plaintiff was diagnosed in 1990 at the age of four months with
hydrocephalus. A shunt was installed for drainage of excess cerebrospinal
fluid. The plaintiff experienced recurrent infections, obstructions and other
malfunctions which required thirty surgeries for shunt replacement or
revision. The plaintiff was admitted to Primary Children's Medical Center at
11
Austin, S. “Ladies and gentlemen of the jury, I present the nursing documentation”, Nursing
2006, Vol. 36, No. 1, January 2006, pages 56-62
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the age of fifteen for another such procedure. The plaintiff claimed that
nurses ignored excessively high pressure readings during this stay and failed
to contact physicians when the pressure exceeded 20 mm Hg for more than
five minutes. The plaintiffs claimed that the plaintiff’s pressures spiked for
three days, then remained high for the next two days, finally rising to 140
and spiking as high as 165. The plaintiff ultimately became unresponsive
and curled into a fetal position before going into respiratory arrest. Doctors
responded at this time and immediately opened valves to allow pressures to
return to normal levels. The plaintiff very quickly became responsive. The
plaintiff suffered brain damage causing memory loss with a marked decline
in short term memory, depression, emotional distress, decreased physical
abilities and cognitive and social disabilities. The plaintiff will need lifetime
assistance and medical care. The defendants admitted that an acute injury
occurred at the time of this hospitalization but claimed that later incidents
caused most of the plaintiff’s problems.12
This case illustrates the importance of not only documenting abnormal findings,
but in communicating these findings to the physician, and documenting that
communication. Your role as a patient advocate provides support for the
responsibility to contact the provider with this information.
2. What did you say?
Nurses are taught to document, with as much detail as possible, what they
told the provider about the patient. You also need to make sure that the
documentation is clearly written because detail alone does not always explain what
happened. It is important that you read your own charting to make sure it makes
sense and is inclusive. Failure to document the phone call or notification to the
provider opens you to the accusation that the provider was not informed.
Electronic medical records should always allow you to enter a narrative note
that contains details such as calls to a provider.
Tip: Attorneys and expert witnesses carefully note an entry written after a nurse
calls a provider about the patient. The words "doctor called" are used in two
confusing contexts. This could mean that you called the doctor, or the doctor called
12
Laska, L. (ed), “Failure to report teenager's rising intracranial pressure during hospitalization
for shunt malfunction”, Medical Malpractice Verdicts, Settlements and Experts, April 2010,
page 14
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you. It could be a critical distinction in a specific case. Note the symptoms that you
conveyed to the doctor. Nurses often tell the doctor more than they document,
although all the chart reflects is a vague phrase "doctor updated on patient's
condition." I have seen the defense of nurses rest entirely on the content of a phone
call to a provider.
3. What time was the call or notification made?
Document on the clinical record the time of a phone call or that you
informed a provider of a change in the patient's condition or a critical abnormal
laboratory value. This documentation must be very specific and very clear.
In a Michigan case, a forty-eight year-old man was admitted to the defendant
hospital with a diagnosis of acute diverticulitis. His condition deteriorated
after admission, with the development of high temperature, respiratory rate,
and pulse rate, combined with low blood pressure. The plaintiff claimed that
a nurse at the defendant hospital had called the defendant physician at 2:30
AM on the day after the decedent’s admission. The original nursing notes which the plaintiff alleged would have documented this call - were missing
from the chart. The defendant physician testified that no phone call was ever
placed to him. If the information regarding the decedent’s condition had
been provided to him (as the nurse clearly testified it was), the defendant
doctor would have been able to prevent the patient’s death. The nurse
testified that she did telephone the physician to provide pertinent
information concerning the patient’s condition. She testified that the doctor’s
reply was that he would be in during the morning hours to see the patient.
The decedent’s condition continued to deteriorate. Surgery was not
performed until 11 AM, revealing an obstruction of the sigmoid colon, with
infarction during surgery. The patient died the next day. The case settled for
policy limits for the defendant hospital and defendant physician for $2.2
million.13
4. What should you have done next?
If the situation warrants further action, use the chain of command to resolve
the concern. In the Michigan case described above, we have to ask what the nurse
should have done when the patient’s condition continued to deteriorate and it was
obvious that the physician was not going to come to the hospital. The nursing
Laska, L. (ed), “Delay in assessment and surgical intervention in intestinal obstruction results
in death”, Medical Malpractice Verdicts, Settlements, and Experts, December 2003, page 23
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13
supervisor and chairman of the surgery department were appropriate people to
address this problem.
In a South Carolina case, the plaintiff alleged the nurse did not report
complaints to a physician.
A fifty-five year-old woman underwent outpatient surgery for kidney stones.
While in the recovery room, she complained of severe left shoulder and arm
pain and her blood pressure dropped significantly. The plaintiff complained
these symptoms were not reported to physicians. The woman was discharged
home with her daughter. A few blocks from the hospital she vomited. Her
daughter returned her to the hospital. The daughter left her mother in the car
as she went to tell the discharge nurse what happened. The nurse told the
daughter that the symptoms were likely related to the anesthesia and to take
the patient home. These symptoms were not reported to a physician. The
woman died the next day from acute coronary syndrome.
The plaintiff claimed the hospital personnel failed to recognize that the
woman was exhibiting cardiac symptoms and that changes in her condition
were not reported to a physician. The hospital admitted that if the decedent
had vomited while at the hospital she would not have been discharged, but
once discharge occurred, any information was not required to be reported
(despite the fact that the decedent was brought back within about five
minutes.) The plaintiff additionally claimed that the nurse should have
assessed the woman due to hospital policy requiring nurses to assess anyone
on hospital property requesting help, or send them to the emergency
department. The jury awarded $430,000.14
In this case, the nurses stepped over the line in failing to report symptoms
and in making a diagnosis based on the patient’s symptoms. It is hard to
understand the logic of the defense that the nurse did not have to report the
patient’s condition while she sat in her car on hospital property.
The role of the nurse as a patient advocate is clearly defined in the ethical
responsibilities of the nursing profession. This was demonstrated in the landmark
Laska, L. (ed), “Failure to recognize woman’s symptoms following outpatient kidney stone
procedure as cardiac-related”, Medical Malpractice Verdicts, Settlements and Experts, July 2013,
page 14
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14
case, Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211
N.E.2d 253, 14 A.3d 860 (1965), in which a young man developed a foul smell
under the cast on his leg. The physician did not respond to the nurses’ concerns
about the patient's condition. The young man ultimately lost his leg, and the nurses
were held liable for not pursuing the issue beyond the patient's physician.
Each facility should have a chain of command policy; this can usually be
found in the nursing department’s policy and procedure manual. This policy should
describe alternative approaches to be taken when normal processes used to report
patient problems do not result in appropriate response to patient care concerns.
These alternative approaches should take into account times when the physician or
nurse manager is unresponsive. Unresponsiveness to patient issues challenges a
nurse’s ability to think critically and document. When the chain of command is
used, document the names of the individuals who were notified of the concerns.
5. Communication with the provider and proximate cause
Though a patient suffers an untoward outcome, and you may have failed to
communicate important information to the physician, you may not necessarily be
found liable for the patient’s outcome. The plaintiff must prove that this breach of
duty by you was the proximate (direct) cause of the patient's injuries. The
intervening negligence of the physician may have been responsible for the injuries.
In these types of cases plaintiff's attorneys frequently name you and the physician
as defendants and let the defendants point fingers at each other. Failure to name all
of the potential defendants allows the defense to point to the empty chair that
should have been occupied by one of the parties involved in the incident. A
defense that is often effectively used is to assert that even if you had informed the
provider of the findings, he or she would not have done anything differently.
18. Not Documenting Exact Quotes
Attorneys and expert witnesses carefully review medical records containing
quotations from the patient or providers. Document exact quotes, particularly when
those quotes contain highly significant information. Exact quotes contain a high
degree of credibility and are usually of great help to both plaintiff and defense
attorneys and experts.
19. Falling into Electronic Medical Records Traps
Electronic records have many advantages. They are legible and are programmed to
use only approved terminology and abbreviations. Electronic medical records may
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be supplemented with resources, such as information about medications, which is
useful when prescribing drugs. Systems that include data from laboratory systems
can incorporate clinical prompts, for example, which may warn against prescribing
a specific medication in the presence of declining kidney or liver function.
Use of bar coding technology reduces medication errors. Access to a
medical record may be electronically limited. For example, a nursing assistant may
be permitted to only enter vital signs but not review orders, laboratory results, or
write nursing notes. In contrast, a paper medical record may be viewed by anyone.
Each entry in the electronic medical record carries a time and date stamp, as
well as the identity of the user. This makes it easier to reconstruct events after a
patient injury occurs.
However, electronic medical records offer tempting short cuts. The pressure
to add information to a patient’s medical record may reflect “production pressure”.
Production pressure is manifested in many area of health care anywhere there is a
need to quickly enter notes into the medical record of a patient before moving onto
the next person. A handy shortcut is getting providers in trouble. Copy and paste is
useful when creating Word documents but can be the source of errors when
medical records are copied and pasted. It is tempting to healthcare providers to
take shortcuts by copying and pasting the note they wrote the day before, or the
note the previous shift wrote. This system has the potential to carry over outdated
or inaccurate information. I’ve seen many physician and nursing progress notes
that repeat data that is clearly wrong.
A study published in February 2013 in Critical Care Medicine found that
copying and pasting was common. This practice has drawn the wrath of the
Department of Health and Human Services Office of the Inspector General. The
OIG announced in October 2012 that it planned to review multiple electronic
health records. The practice of copy and paste is sometimes called cloning. 15
Always make sure that the information you enter into a patient’s record is
accurate. Look at these examples taken for actual medical records and think about
how the nurse looks for putting them into the record. In case number 1, the patient
was in a coma. Look at these examples of meaningless, almost nonsensical, entries,
which were often repeated, included:
15
http://www.amednews.com/article/20130204/profession/130209993/2/
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1)
“ADLs Safety: Call device within reach” Just below this entry:
“Demonstrates ability to use call light successfully: No”. (NOTE: Why put a call
light within reach of a patient who cannot use it due to her cognitive limitations
and contractures of her arms?)
2)
“Urinary Elimination: Voiding, no difficulties”. Just below this entry:
“Voiding difficulties – Incontinence” (NOTE: How can she have no voiding
difficulties in one entry, and have voiding difficulties in the next entry?)
3)
“Gait/transferring: Normal, bedrest, immobile” (NOTE: What does
this mean? Does this mean the nurse is charting she has a normal gait?)
4)
“Mental Status: Forgets limitations” (NOTE: This woman was
unaware of her limitations and could not communicate well enough to even tell the
staff she forgot something.)
5)
“Grooming: Patient does only 1 of 5 tasks or no tasks” (NOTE: Well,
which is it? And by all other documentation available, I could see Mrs. Smith was
unable to perform any tasks.)
6)
“Environmental Safety Implemented: Encourage personal mobility
support item use” (NOTE: This woman could not walk so this entry is
nonsensical.)
7)
“Environmental Safety Implemented: Personal items within reach”
(NOTE: Again, she was in a coma.) 16
In case number 2, a man who was paralyzed from the waist down was
documented as walking in the halls. He was also totally bald. A nurse documented
she gave him hair care. The patient’s wife brought a nursing malpractice suit for
the pressure ulcers that developed during a month long admission. She pointed out
these discrepancies and others when she was deposed. The case settled.
16
Thanks to Jane Heron RN MBA LNCC for these examples. Jane is employed at Med League
Support Services, Inc.
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20. Nor Properly Recording Telephone and Verbal Orders
Misunderstandings or documentation of wrong orders are prevalent when orders
are received verbally or by phone. Background noise, accents, and distractions may
result in incorrectly hearing the order. Another risk of phone orders is that the
physician may misdiagnose the problem and provide inappropriate orders. This is
an even greater problem when the physician has signed out to a covering physician
who does not know the patient. Writing a verbal or telephone order on a piece of
paper other than a chart form may result in the need for others to decipher the
document. There is a risk of a transcription error occurring as a result.
In hospitals physicians are expected to verify the accuracy of a telephone or
verbal order, sometimes within 24 hours. In nursing homes, a telephone order may
be recorded on a chart form, photocopied, and mailed to the physician for cosignature. Unfortunately, because of misunderstandings, the order may differ from
the order that was given; and, by the time the physician receives it, the order has
already been transcribed and implemented. Also, the clinician may not recall the
order several days later. A study of seven 99 bed skilled nursing facilities in
Southern California concluded that there was an error rate of 6.1 per 1000
telephone orders. In all cases, the order error was not identified in routine
physician phone order review when the clinician had an opportunity to compare
the transmitted order with his or her memory of the actual order.17
Most agencies attempt to discourage verbal orders in circumstances other
than emergencies. Every facility should have well-known and enforced policies
that specify the criteria for dictating and accepting verbal and phone orders. The
Joint Commission brought this issue to the forefront when it was included as one
of the 2004 Patient Safety Goals. The Joint Commission’s patient safety goal
emphasizes their commitment to improve the effectiveness of communication
among caregivers.
In a Washington State case, a fifty-nine year-old man underwent surgery to
implant radiation treatment catheters into his prostate after he was diagnosed
with prostate cancer. Epidural Duramorph (morphine) was prescribed for
pain management. About twelve hours after surgery, there was difficulty
Randolph, J., J. Magro, D. Stalmach, B. Cermak, and B. Wilson, “A study of the accuracy of
telephone orders in nursing homes in Southern California, Annals of Long-Term Care; 7 (9):
1999, pages 334-338
17
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rousing the patient. Anesthesiologist Dr. Skirnyk examined the patient and
ordered the Duramorph dose to be reduced by half. The patient was found
unresponsive one and one-half hours later and could not be resuscitated. The
plaintiff claimed that the Duramorph caused respiratory depression. Dr.
Skirnyk claimed he gave a verbal order for continuous oxygen saturation
monitoring. The nurse claimed she had received no such order. She did
continue to perform spot checks of the oxygen saturation levels thereafter.
The jury deadlocked, resulting in a mistrial. The case settled for $650,000
which was paid by the hospital and Dr. Skirnyk. 18
Accredited facilities must implement a process for taking verbal or
telephone orders that require a verification "read-back" of the complete order by
the person receiving the order. Simply repeating back the order is not sufficient.
Whenever possible, the receiver of the order should write down the complete order
on an order sheet or enter it into a computer, then read it back, and receive
confirmation from the individual who gave the order. This goal applies to all
verbal and telephone orders. It also applies to reading back critical test values that
are reported verbally or by telephone to a nurse, unit secretary, or physician in an
institutional setting. Critical test results are defined by the healthcare organization
and typically include "stat" tests, "panic value" reports, and other diagnostic test
results that require urgent response. 19
Voice mail orders at home care agencies are not acceptable within the
context of this patient safety goal. Most state laws require nurses and pharmacists
to obtain the order directly from the prescriber or his/her agent. When not received
directly, the home care nurse or pharmacist must call the prescriber back to get the
order directly, including a "read-back." Patients or their family members are not
considered physicians' agents, nor are they qualified by law and regulation in most
(if not all) states to receive orders for care. If this is legally permissible in a
particular venue, then a "read-back" of any verbal or telephone order should be
carried out, and the family member would have to be trained to do this. 20
18
Laska, L. (ed), “Death following placement of radiation treatment catheters for prostate
cancer”, Medical Malpractice Verdicts, Settlements and Experts, August 2013, page 15
19
http://www.jcaho.org/accredited+organizations/patient+safety/04+npsg/04_faqs.htm#goal%202
accessed 4/19/04.
20
Id
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21. Not Correctly Transcribing Orders
Accurate transcription of orders is essential. Although unit secretaries may
transcribe orders, the registered nurse has ultimate responsibility for the accuracy
of transcription. It is a common practice to check off each order as it is processed
or to document a number next to the order as assigned by the computer. In a
manual medical record system, draw a bracket alongside the orders and beneath the
last order, write the date and time, and sign your name. This indicates that all
orders within that bracket have been transcribed. In some facilities, one shift
(usually the night shift) is responsible for checking all charts to be sure that there
are no overlooked orders written in the last twenty-four hours. This may be noted
as “24 hour check” on the order sheet. 21 Medical errors may occur when an order
is transcribed inaccurately or overlooked. Direct computer provider order entry
eliminates many transcription errors.
22. Improperly Providing Telephone Triage and Advice
Nurses and physicians are often put in the position of answering questions from
family and patients over the phone. Calls come into medical offices, clinics,
emergency departments, and other settings. The chief components that need to be
documented in these circumstances include:







date and time of the call;
caller’s name;
caller’s request or chief complaint;
advice the healthcare professional gave;
protocol that was followed (if any);
other caregivers that were notified; and
the name of the person who took the call. 22
23. Not Documenting Allergies
If a patient tells you about a medication allergy and you do not properly record it,
you could be liable if the patient receives that medication. Facility policy usually
defines how allergy information is documented. Commonly used facility records
21
Iyer, P. “Legal aspects of charting”, in Iyer, P., Levin, B. (Eds) Medical Legal Aspects of
Medical Records, Second Edition, Tucson, Lawyers and Judges Publishing Company, 2010
22
Why is there so much hoopla about documentation anyway?
www.corexcel.com/html/body.documentation.page4.ceus.html accessed 4/19/04
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for documenting allergies are the emergency department triage record, physician’s
history, nursing admission assessment, medication administration record, front of
the patient’s chart and sometimes the top or bottom of every physician order sheet.
Facilities with computerized medical records may have a warning system to flag an
order which is contrary to a known allergy. 23
24. Tampering with Medical Records
Probably the biggest mistake you could make is to tamper with a medical record. I
receive phone calls every month from people who think healthcare providers have
altered their records. I explain I cannot work with them unless they have an
attorney. These are individuals who have seen their records (or not been able to
obtain them) and know the information is misleading, incorrect or missing.
Whenever attorneys review medical records they are alert to signs of
tampering with the record. The true incidence of tampering with the record will
never be known. Healthcare professionals have tampered with medical records in a
number of ways. Tampering with the record involves any of the following:
1.
Adding to the existing record at a later date without indicating the addition is
a late entry
2.
Placing inaccurate information into the record
3.
Omitting significant facts
4.
Dating a record to make it appear as if it were written at an earlier time
5.
Rewriting or altering the record
6.
Destroying records
7.
Adding to someone else's notes
Medical records departments often alert their risk managers when a record
request comes from a plaintiff's attorney's office. The risk manager may then make
the decision to have the record sequestered in anticipation of possible future legal
action. Sequestering the record is not designed to impede the facility’s response to
a record request. It is done to protect the integrity of the record and to assure that
no part of the record is lost or destroyed. Without sequestration, healthcare
professionals involved in the care of the patient may be informed of a request and
take an opportunity to review the medical record without supervision. Some
23
Iyer, P. “Legal aspects of charting”, in Iyer, P., Levin, B. (Eds) Medical Legal Aspects of
Medical Records, Second Edition, Tucson, Lawyers and Judges Publishing Company, 2010.
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professionals have yielded to the temptation to embellish or otherwise alter the
medical record. These changes may be unnoticed, but often they are done clumsily
or are contradicted by other information in the medical record.
A forensic documentation specialist is able to analyze a medical record to
test inks and writing styles to determine if an alteration has been made; in many
cases they are able to determine some or all of the original charting. Changes made
to an electronic medical record leave a trail, which may be deciphered by a
computer specialist.
Tip: Sometimes the patient has obtained a portion or all of the medical record for
the plaintiff's attorney. The attorney may compare this copy with the one supplied
to the attorney by the facility. Once that chart has been handed over to the plaintiff
attorney, any changes, alterations, additions, removals from that chart become
detectable. Tampering with a medical record elevates the seriousness of the claim.
Even if the defendant did nothing wrong, the case may become indefensible.
Tampering can take what was a defensible case into a complicated and expensive
case.
A. Effect on the case
Showing that records were tampered with will increase the case value, help prove
the attorney’s due diligence, and prevent witnesses from committing perjury. 24
Proof that a healthcare professional has altered or falsified medical records utterly
changes a medical malpractice case. The changing of a record may require defense
counsel to settle the case out of court even if no negligence has occurred. Once the
accuracy of the record is challenged, the integrity of the entire record becomes
suspect.
Recently a plaintiff attorney told me he settled a case after he discovered the
staff tampered with the medical records. The patient was elderly. She was not
resuscitated when her condition deteriorated. As he said, “She was going to die
anyway, but when the staff altered the records, I was able to settle the case for
$250,000, far more than it would have otherwise been worth.”
24
Palmer, R. “Altered and ‘lost’ medical records.” TRIAL, May, 1999
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In most states, if there is evidence of alteration or falsification of medical
records, the judge will instruct the jury they can infer from the altered record that
the healthcare provider knew he or she was at fault. Juries tend to believe what
they see in black and white. Written or typed words about a patient’s medical
history, chief complaints, examinations, and treatment often make or break a case.
25
Preserving evidence provides each party with an opportunity for a fair trial.
Juries respond unfavorably to people who lie or cheat in connection with a criminal
or civil matter.
B. Effect on the healthcare provider
1. Insurance coverage
A medical malpractice claim that includes an allegation of alteration of
records may not be covered by your employer’s or your insurance policy. If the
provider admits that he or she has made the alteration, the policy may be
completely voided, including coverage for medical negligence, depending on that
state’s law. An individual who has his or her own insurance policy may find the
carrier refusing to renew the policy the following year after the insured was found
to have altered records, or on whose behalf a settlement was paid in a case
involving alleged alterations. 26
2. Regulatory agencies and privileges
Some state regulatory or licensing boards may investigate the healthcare
provider; and, in the wake of record alterations, disciplinary action may follow.
You may be asked to appear before the Board of Nursing for an investigation of
your actions with suspension or termination of your nursing license. You may lose
your job.
3. Criminal/civil offenses
In many states, falsification of medical records is also a criminal offense
punishable by fines and incarceration, e.g., California Penal Code section 471.5.
The Health Insurance Portability and Accountability Act was used to put a nurse in
prison for altering records.
25
Id
26
Baxter, M. “Managing medical malpractice: the documents, the providers, and the lawyers.”
www.bbsclaw.com/med_mal_baxter.htm, accessed 11/16/04.
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A former nurse was the first in her profession nationwide to go to prison for
falsifying medical records, an act which contributed to the death of an
eighty-four year-old nursing home resident. The LPN was sentenced to 10 to
16 months in federal prison, and surrendered her nursing license. The LPN
received a verbal order to reduce the resident’s anticoagulant (increases
clotting time) medication. A short time thereafter, the resident’s condition
worsened, and the LPN realized that she failed to transcribe accurately the
order to reduce the anticoagulant medication. The LPN then falsified the
resident’s medical record to indicate that the physician’s order had been
implemented correctly. It was this falsification of the medical record, not the
initial error itself, which formed the basis for the criminal charges. The law
used by the federal prosecutor to prosecute the LPN had never been utilized
in this way before. The federal law was incorporated into the 1996 Health
Insurance Portability and Accountability Act (HIPAA) and precludes the
making of ‘false statements’ in a matter involving a federal healthcare
benefit program. The healthcare benefit programs that are usually involved
are the federal Medicare and Medicaid programs. Attorney Prosecutor David
Hoffman admitted that he had chosen this case to make a statement
regarding what he perceived to be a significant problem. He maintained that
medical records are ‘routinely falsified’ and that if such falsifications are
prosecuted as federal offenses, it will deter such behavior. Attorney
Hoffman said that the nurse took advantage of a defenseless victim and the
government needed to send a message that such behavior will not be
tolerated. “It is a betrayal of trust that thousands of elderly people in nursing
homes throughout the country rely on. It is not OK to document care that
was not provided.” The LPN cared for two adopted teenage sons and a twoyear-old daughter. She had just divorced her husband around the time she
falsified the records. Job related stress was difficult due to understaffing at
the nursing home, said her sister. Although her family begged the judge not
to send the LPN to jail, some violations of HIPAA result in a mandatory
prison term, leaving the judge no choice. The case was decided in November
2001. 27
In a second Pennsylvania case, the head of a now-defunct nursing home was
27
Grossman, E. “Bethlehem nurse pleads guilty to covering up error.” The Morning Call,
Allentown PA, May 24, 2001.
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indicted on federal fraud charges. The indictment followed the death of a
woman who wandered outside in the cold and was locked out in 40-degree
temperatures. Fraud charges have been added to involuntary manslaughter
charges. According to the indictment, the administrator and nursing home
altered nurses’ notes to hide bruises and sores, forged doctor’s signatures on
medical records, altered doctors’ orders and did not hire enough employees.
The federal prosecutors also claim the facility defrauded Medicare and
Medicaid from 1999 to 2003 by forging records and inflating care. The
administrator was also accused of skimming money by having the nursing
home make payments to three nonprofit organizations she ran. The
supervisor is awaiting trial on perjury, conspiracy, and tampering with
evidence charges. Investigators believed that the resident walked out a door
that was propped open or one where the alarm was deactivated so workers
could go outside to smoke. The prosecutors claim that the administrator
ordered the supervisor to have the resident’s body carried back inside the
home and to alter records to make it appear as if the resident died in her
sleep. The attorney for the nursing home and administrator has argued that
they should not be held responsible for the resident’s death because there
was no way to know she would wander outside. 28
D. Detection of tampering
Fraudulent addition to a record for the purposes of covering up an incident can be
detected by current technology. Expert document examiners have many
sophisticated techniques to detect altered records. Some of these methods include
chemical analysis, ultraviolet and infrared examination, spectrophotometry, and
chromatography. They can date ink samples the size of a pinprick. Many
manufacturers change the composition of the ink in pens at the beginning of each
year, permitting the dating of entries. 29
E. Types of tampering
1. Adding to an existing record at a later date
Some healthcare providers become panic stricken when notified of an impending
lawsuit and are tempted to review the medical record for completeness. They may
28
Crissey, M. “Pa. nursing home administrator indicted.” http:news.yahoo.com/news, 8/25/04,
accessed 8/28/04.
29
Nygaard, D. and S. Deubner, S. “Altered or ‘lost’ medical records.” TRIAL, page 46, June
1988.
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be unaware that by the time they realize a suit has been filed the plaintiff's attorney
has a copy of the record.
The plaintiff, age twenty-two, had sickle cell trait and became pregnant.
After delivery of her child she suffered a precipitous drop in blood pressure.
She was initially given phenylephrine. The blood pressure rose, but then
dropped quickly again with a blood pressure being as low as 94/17. When
the second drop occurred no action was taken for nearly thirty minutes. After
her discharge from recovery it was discovered that she was unable to move
her legs. She continues to be paraplegic. During discovery the plaintiff
learned that a note had been added by a nurse at a later time indicating that
she had received approval to transfer the patient from another nurse who
received approval from the anesthesiologist. This was vigorously disputed
by the second nurse and the anesthesiologist. A third party claim was filed
by the hospital against the nurse and her employer. The plaintiff claimed that
the most likely cause of the paralysis was a drop in blood flow and proper
perfusion in the area of the artery of Adamkiewicz, causing a sludging and
subsequent paralysis. According to a published account a confidential
settlement was reached. 30
2. Placing inaccurate information into the record
False information in a medical record can sometimes be hard to detect after
the fact. At times common sense or the clinical knowledge of a legal nurse
consultant or expert witness will lead to the suspicion that the documentation is not
entirely truthful. At other times, the plaintiff will convincingly assert that the
information is inaccurate.
The plaintiff’s decedent, age sixty-five, was admitted to the defendant
facility after knee surgery in October 2007. The decedent had a history of
blood clots in her lungs and was taking the anticoagulant Coumadin. Blood
work done a week after her admission showed her clotting factor to be
dangerously high and a nurse who received the test results did not forward
them to the physician. The medical records indicate that the results had been
given to the physician, but the plaintiff claimed that the nurse altered the
Laska, L. (ed), “Woman's drop in blood pressure after delivery of child not properly treated,
resulting in paraplegia”, Medical Malpractice Verdicts, Settlements and Experts, March 2010,
page 15
30
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records. The decedent died two days later. According to a published account
a $900,000 settlement was reached. 31
3. Omitting significant information
The deliberate omission of significant information may be more difficult to
detect. Omission of information was at one time was very difficult to identify, but
currently has become easier due to changes in documentation styles and changes in
regulations by The Joint Commission and CMS (Centers for Medicare and
Medicaid Services). As an example, charts now use forms and flow sheets more
frequently. The omission of information from a flow sheet or a nursing form may
be easy to spot. For example, some neonatal and pediatric flow sheets are set up
with blanks to be filled in every hour to indicate that an intravenous site was
examined for signs of infiltration. A flow sheet of this nature would be an
important piece of evidence in a case involving a child with an intravenousassociated injury.
The Joint Commission and CMS have set goals and regulations for hospitals
and long term care facilities to clearly and accurately record patient complaints of
pain, the medications given for that pain, and the relief (if any) the patients
experienced. Omission of any of that information is usually simply an error in
documentation, but could also be deliberate.
Common sense is often applied to identify the information that is missing. In
the following case, common sense was used to identify missing information:
A New Jersey nursing home resident had a significant risk for falls. During a
visit by his son, his son noticed that he was in severe pain. The son reported
his father’s pain to a nurse and a nursing home supervisor subsequently told
the son that the decedent had fallen the day before. The incident went
unreported. The decedent was diagnosed with a left hip fracture which
required surgery. The plaintiff alleged negligence in monitoring the decedent
and failure to adequately restrain him in bed. The plaintiff also alleged
negligence in failing to chart the fall. The defendant argued that the decedent
was in good condition after the fall and that no charting was necessary under
the facility’s protocol, which called for charting only when a patient’s
31
Laska, L. (ed), “Failure to relay information to doctor regarding dangerously high clotting
factor in woman on Coumadin”, Medical Malpractice Verdicts, Settlements and Experts,
January 2010, page 24
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condition changed. An $80,000 settlement was reached. 32
This type of scenario is one I have heard about several times: an undocumented fall
followed by pain and discovery of a fracture.
4. Dating a record to make it appear as if it had been written at an
earlier time
Many people involved in malpractice litigation recognize that more
tampering occurs in doctor's office records than in the hospital, where it is easier to
spot an alteration. The following describes clues used by attorneys and expert
document examiners to detect fraudulent dating of records:
1.
Unnatural order of writing and uniformity of handwriting, ink margins, and
spacing
2.
Intersecting fountain pen entries of different dates that bleed together
3.
Differences between pages as to folds, stains, offsets, impressions, holes,
tears, and type of paper used
4.
Use of forms not approved or adopted at the purported time of entry
5.
Use of later year (2012 for 2013), especially if it has been corrected several
times 33
5. Rewriting the record
One of the most damaging admissions occurs when a healthcare professional
testifies that a medical record was rewritten. There can be completely innocent
reasons why a medical record was rewritten. Occasionally a page from a chart will
be recopied if it is torn or liquid is spilled on it. The appropriate procedure to
follow when this occurs is to identify the page as rewritten. The original page
should be retained in the medical record. The deliberate rewriting of a record with
attendant changes in the content, timing, and sequence of events is tampering with
the record.
In a Utah case involving an infant diagnosed with an anoxic brain injury, the
plaintiff claimed the hospital failed to properly effectuate the hospital’s call
system and failed to have proper resuscitation equipment available. One of
Laska, L. (ed), “Failure to properly monitor man at risk of falling and failure to chart fall.”
Medical Malpractice Verdicts, Settlements, and Experts, June 2008, page 32
32
33
Nygaard, D. and S. Deubner, S. “Altered or ‘lost’ medical records.” TRIAL, 46, June 1988.
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the nurses had allegedly prepared a signed flow sheet showing the arrival
time of the physicians. Another unsigned flow sheet showed the arrival time
of these doctors to be several minutes sooner. The nurse who prepared the
flow sheets was medically unable to be deposed. The jury returned an
$892,214 verdict. 34
6. Destroying medical records
The destruction of pages, sections or an entire medical record creates a
strong suspicion that the information in the record was so damaging that you had to
be concealed. When a record, or pages of it, disappear(s), part of the discovery
process involves determining who had access to the record. Missing records are
always difficult to explain and in most cases the mystery is never completely
solved. As discussed earlier, the missing records negatively affect both plaintiff
and defense attorneys.
In a New York case, a laboring mother was monitored in labor and delivery
by nurses and a resident. Shortly after birth, the infant was diagnosed with
cerebral infarctions which caused mild, partial paralysis. The child also
suffers some reduction in cognitive ability. The plaintiff claimed that the
infarctions were due to hypoxia and that an earlier cesarean section would
have prevented the hypoxia. The defendant claimed that the fetal heart
monitor had shown normal readings during the hour and one-half to two
hours just prior to the delivery, although the hospital could not produce the
fetal heart monitor tracings. A $3 million settlement was reached. 35
7. Adding to someone else's notes
Even though it is unacceptable for a healthcare professional to alter
someone else's documentation, it happens, and more commonly than you would
believe. Physicians have altered nursing records, and nurses have altered each
other's notes. This alteration may be as simple as a rather bold addition to a note,
with the addition done in an obviously different handwriting. In a case like this the
alteration may have been done by a physician who is adding comments to
Laska, L. “Failure to properly resuscitate newborn following placental abruption.” Medical
Malpractice Verdicts, Settlements, and Experts, February 2009, page 32
34
Laska, L. “Failure to timely perform cesarean section blamed on hypoxia and cerebral
infarctions.” Medical Malpractice Verdicts, Settlements, and Experts, March 2008, page 36
35
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another’s note. Physicians may be very casual about editing someone else's notes
because of the practice of overseeing the documentation of residents.
Tampering with records can have profound implications for you – loss of
your license, job and career. As you can see, there are many ways to get caught.
When someone asks you to change the record, there is a one word answer: “No”. 36
36
Modified from Patricia Iyer, R.N., M.S.N., L.N.C.C. and Sharon Koob, R.N., B.S.B.A.,
CPHRM, ARM, “Nursing Documentation” in Patricia Iyer, Barbara Levin, Kathleen Ashton and
Victoria Powell, (Eds), Nursing Malpractice, Fourth Edition, Tucson, Lawyers and Judges
Publishing Company, 2011.
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Top 12 Holes in Nursing Documentation to Avoid
Let’s recap. Here are the biggest traps and the flaws in documentation that most
often influence findings of liability and confuse the understanding of what
happened to a patient.
1.
The nurse did not time and date the record. The entries are not signed.
2.
The nurse copied and pasted someone else’s electronic documentation
including that person’s initials and details of a previous shift’s events. This is
becoming an increasing critical issue.
3.
The nurse created a late entry without labeling it as such. The nurse hoped
no one would recognize the information was added in after the fact.
4.
Not paying attention to the identity of the patient, the nurse entered the
information into the wrong chart, whether in paper or electronic form.
5.
After reporting concerns to a supervisor or physician, the nurse did not
document the name of person.
6.
The nurse did not record care he or she provided, such as drawing blood,
starting an IV, or giving a medication.
7.
In long term care, the nurse recorded care as given after the nursing home
resident left the building. Rote or careless charting makes the chart questionable.
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8.
The nurse left blanks on forms, making us wonder if the care was given and
not recorded, or not given at all.
9.
Illegible writing, spelling errors and lack of proofreading confused the
details of care and impaired the important communication the chart was intended
to provide. Lives can depend on the accuracy and legibility of chart entries.
10. The nurse used unapproved abbreviations, such as “KGH” for “keeps good
health”. These abbreviations only serve to confuse others and may result in errors
in interpretation.
11. The nurse used terms that displayed a negative attitude towards the patient.
“Drunk”, “obnoxious”, “irritating”, and “demanding” revealed the nurse’s attitude
and when coupled with a bad outcome, makes others wonder if the nurse provided
good quality care.
12. The nurse accepted a questionable or incomprehensible order without
questioning it. The nurse failed to question orders that he or she did not understand
or feel were not in the patient’s best interest. Fatigue, distraction, and language
barriers contribute to miscommunication, one of the top reasons for medical errors.
13.
The nurse altered the records.
Now that you’ve finished reading this report, go out and polish your
charting. Keep the legal aspects of your charting in mind and know that you will be
rewarded by charting that protects you.
But wait, there’s more. Keep reading.
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Interested in learning more?
Join us on a February 8-15, 2014 Eastern Caribbean Legal Issues cruise for clinical
nurses and legal nurse consultants.
 You’ll be sitting on a sun-drenched beach looking at the aquamarine ocean
when it is winter at your home.
 You’ll have fun, make friends, and enjoy the nightly entertainment.
 You’ll learn critical information from expert and experienced nurse
educators.
 You’ll gain vital information that will have a direct impact on your practice.
 You’ll enjoy time away from home in a beautiful part of the world.
 You’ll get 12 contact hours of legal issues education for nurses and still have
time for excursions and afternoon activities.
 You’ll experience a unique Valentine’s Day.
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 You’ll benefit from two experienced legal nurse consultants: Barbara Levin
and Patricia Iyer. We have extensive knowledge of legal issues that affect
nurses. Both of us have years of testifying as expert witnesses in nursing
malpractice cases.
 Get more details at http://tinyurl.com/k6fomdx
Save the maximum by contacting our nurse travel agent, Bobbi Drum, because
space is limited and going fast.
If you can’t come, you can still learn through purchasing the audiorecordings or
transcripts. See the Landlubber option at http://tinyurl.com/kngv3rg
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Safeguard Your Ambulatory Nursing Care Practice
Patricia Iyer MSN RN LNCC
The Pat Iyer Group
2012
This new text highlights the legal risks of nurses who work in a wide variety
of ambulatory care settings: clinics, medical offices, telephone triage and
other settings.
Has this happened to you?
 You recognize that something occurring in your ambulatory care practice
setting puts the patient at risk for injury. You want to know how to avoid
risks to the patient.
 You are involved in an incident and you wonder about your risks of being
sued.
 You receive a notice that you are being sued for nursing malpractice.
 You are a legal nurse consultant or an attorney handling a case involving
ambulatory nursing. You need more information about the clinical and
managerial responsibilities.
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This book is packed with vital information about the risks of ambulatory
care. You will learn

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Why people file lawsuits against healthcare providers
How a suit proceeds
Common allegations against nurses
High risk incidents
How suits are defended
Legal doctrines pertinent to ambulatory care nurse administrators
How to create bullet proof nursing documentation
Case studies drive the points home in this book. This book is an expansion
on content presented by Patricia Iyer as the 2012 American Association of
Ambulatory Care Nursing Annual Conference. This well-attended
conference received highly positive comments.
Price: $24.95
Order at this link: http://tinyurl.com/m7z5j7m
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SBAR: Creating Clear Communication
Patricia W. Iyer
52 pages, e-book (download)
The Pat Iyer Group
Price: $34.00
Attention Healthcare Providers: If you have been wanting to learn how SBAR helps
improve communication and saves patient lives, you must read this ebook!
Finally! An easy to understand guide that will make communicating with SBAR
easy.
Dear Fellow Healthcare Provider,

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Are you frustrated by medical errors?
Do you see patients being injured because of miscommunication?
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
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Do you long for a method of easily communicating the important information
when you turn care over to another provider?
Are you searching for ways to improve team work?
Do you want to reduce your risk of being sued for malpractice?
There are lots of books on medical errors but few on a simple technique that saves
lives. For the last 22 years of working with attorneys, I have heard case after case of
patients being injured by miscommunication. So I decided to write a book called SBAR:
Creating Clear Communication. It is like no other book ever written. And you can’t buy
it at Amazon or Barnes and Noble.
Here’s what you’ll learn after reading SBAR: Creating Clear Communication:

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What SBAR is different from SOAP charting
How you can use SBAR to reduce medical errors
Why SBAR promotes clear communication between providers
How SBAR improves your listening skills
How SBAR will simplify your hand-offs
Why SBAR will help you avoid being sued
How you can flawlessly implement SBAR
But that’s not all! You will also receive:

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Answers to frequently asked questions
A list of essential resources
Sample forms
Tips for training others in SBAR
The only way to purchase this 52-page ebook is on www.PatIyer.com. And in just 90
seconds, you can download it to your computer right now. So as soon as you place your
order, you will have instant access to it. No waiting in the mail for the book to show up.
I want you to be happy with your purchase. If you are not satisfied that my book I want
you to keep the book and I will refund the money. This is my 100% guarantee: That’s
how much confidence I have in knowing you’ll love the book.
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“What an outstanding resource this is! It is really excellent! We have been using the
SBAR technique since January 2009 and have found it to be very ‘user friendly’,
especially with newer staff. The short time needed to use the SBAR technique will pay
off in the end by creating a standard for which all communication is based. I find that
today’s newer staff members need an easy, reliable, and standardized procedure like
this.” — Christina Turner RN, Administrative Resource Coordinator, Chambersburg
Hospital, PA
“Very interesting and well done. On the front lines of patient care we need tools that
make sense. SBAR is simply a better way of communicating.”
— Larry Cohen MD FCCP FCCM
Associate Professor of Anesthesiology, Medicine & Surgery, State University of New
York @ Buffalo
Director, Critical Care, Roswell Park Cancer Institute
Order today at this link: http://tinyurl.com/lznenu3
You’ll be glad you did.
Pat Iyer MSN RN LNCC
President, Med League
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Become a legal nurse consultant!
Many nurses are intrigued by the rewards of this field. If you like analyzing
information, solving puzzles, writing, and educating, this may be just the field for
you.
Get a jump start on your career as a legal nurse consultant – SAVE over
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Enjoy a multimedia approach: learn through texts, videos, webinars and
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onto a plane to do so. No airfare, hotels or food costs add to your LNC education.
Patricia Iyer handpicked the components of this course to assemble an education to
help you launch your LNC practice. Patricia is a legal nurse consultant with 25
years of experience assisting attorneys who handle medical malpractice and
personal injury cases. Her contributions to the field of legal nurse consulting
include:




Past President of the American Association of Legal Nurse Consults
(AALNC),
Chief editor of Legal Nurse Consulting: Principles and Practices, the core
curriculum for legal nurse consulting (published by AALNC), 2nd Edition
Chief editor of Business Principles for Legal Nurse Consultants (published by
AALNC),
Chief editor of AALNC’s online legal nurse consulting course.
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
Author or editor of over 180 books, chapters, online courses, articles or case
studies.
We offer an attractively priced starter course for nurses who want to become legal
nurse consultants. Study in the convenience of your own home. Get details at this
link: http://tinyurl.com/mmdwz6v
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Evaluation Form
Title: 24 Nursing Documentation Mistakes That Could Get You Sued
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Please return this form by email to contactus@medleague.com or by fax to 908806-4511 or by mail to The Pat Iyer Group, 260 Route 202-31, Suite 200,
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Contact hour form: 24 Nursing Documentation Mistakes That Could Get You
Sued
Name:
Address:
Street, City, Zip
1. True/False
Plaintiff attorneys file suit for the vast majority of cases that come to their
offices.
2. True/False
Tampering with medical records is one of the biggest documentation
mistakes a nurse can make.
3. True/False
A nursing malpractice insurance policy provides coverage for advice you
give your next door neighbor.
A check for $15.00 written to Taylor College should be sent if you wish three
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