GSRT:
An Hour with the Enemy
Charles A. Dorminy, J.D., LL.M.
Hall, Booth, Smith & Slover, P.C.
220 East 2nd Street
Tifton, Georgia 31794
Email: cad@hbss.net
Phone: (229) 382-0515
Malpractice Payments by
Nursing Category 1998-2001
Roadmap
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Overview of lawsuits
Law regarding Documentation
Pitfalls and Issues
Examples
Common Themes of Suits
• Plaintiff attorneys with expertise in medical negligence
cases.
• A sympathetic Plaintiff.
• The lawsuit names not only the radiologist but other
medical specialties. Each physician’s defense is at odds
with the other.
• Bad outcome which was preventable but for “Your”
negligence.
• Well-traveled, experienced medical “experts” who make
thousands of dollars in testifying based upon opinions
made in hindsight.
Time Limitations
• A lawsuit must be filed generally within two
years of date of injury. This is known as the
statute of limitations. The statute of
limitations, is extended if a minor is involved.
• A claim not filed within five years of the date
of negligence is barred by the statute of
repose. This is absolute.
What happens in a lawsuit?
• Pleading:
– Complaint
– Answer within 30 days
• Discovery
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–
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Obtain medical records, interviews, meetings
Interrogatories
Requests for Documents
Non-Party Requests for documents
Depositions
What happens in a lawsuit?
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•
•
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Expert witness reviews
Deposition of experts
Motion for Summary Judgment
Alternative Dispute Resolution
– Arbitration, Mediation, Negotiation
• Trial
Two potential claims
1. Negligence
– Malpractice or Simple
2. Battery
– Unlawful touching
Negligence or Malpractice
• Simple Negligence
– A mere breach of duty
– i.e. Dropping a patient
• Professional Negligence or Malpractice
– Requires exercise of professional judgment
– i.e. Sticking patient in the wrong place
To Prove Negligence (either)
Duty
+Breach (in standard of care)
+Proximate causation
+Damages
__________________
Negligence
Overview of Negligence
• "A medical provider who undertakes to perform professional
services for a patient must use reasonable care to avoid causing
injury to the patient.
• The knowledge and care required of the physician is the same
as that of other reputable physicians practicing in the same or a
similar community and under similar circumstances.
Overview of Negligence
• A medical provider not only must have that degree of learning
and skill ordinarily possessed by other reputable providers but
also must use the care and skill ordinarily used in like cases.
• A failure to have and use such knowledge and skill is
negligence." Georgia Pattern Jury Instructions
First Element
• Duty
– Plaintiff (person suing) must prove that there
was a “doctor patient” relationship
– You all owe your patients a duty to act reasonably.
– Most patients do not know the rad techs prior to exam
• i.e. they didn’t choose you
– Do you have a relationship with patient?
• Perform x-ray etc on patient
• If you’re in the record (or supposed to be) then you
have a duty
Second Element: Breach of
“Standard of Care”
• Standard of Care:
– “Reasonable and customary medical practice in like
circumstances”
• There is no requirement of a perfect result.
• Cannot blame the medical provider solely because
of a bad result, no matter how bad the result.
Second Element: Breach of
“Standard of Care”
• Defendants are presumed to have complied with
the standard of care
• Plaintiffs have the burden of proof
– By a “preponderance of the evidence”
– Must tip scales slightly in their favor, that’s I
• Plaintiffs must overcome presumption with
“competent expert” testimony
Competent Experts
• Active practice in defendant’s profession or specialty for at
least 3 of the 5 years prior to the date of injury
– “You too can be an expert!”
• Actual professional knowledge and experience in the area
of practice or specialty in which the opinion is to be given.
– “But I’ve never done it before”
• Up to the discretion of the trial judge
• Doctors can testify about nurses
– But can Radiologists testify about rad techs?
(O.C.G.A. 24-9-67.1 effective 2/16/05)
Experts
• Competent to offer
opinions about rad
techs based upon
education, training
and experience
Expert’s Opinions
• Must be accepted
within the medical
community.
• Not “junk” science
Third Element
• Proximate Causation
– Plaintiff (person suing) must prove that she
suffered injuries as a result of the defendant’s
(person being sued) negligent act or omission
and injuries would not otherwise have occurred.
– Proof to reasonable degree of medical certainty
• more likely than not
Fourth Element
• Damages
– If those three elements
(duty, breach in the
standard of care, and
proximate cause) are
proven, defendant will be
liable for the resulting
damages
– No harm no foul
Malpractice for Rad Techs
• Not a lot out there
• Usually sue the radiologist and/or Hospital
– They may blame it on you
– Documentation is your defense
Two potential claims
1. Malpractice
– Negligence
2. Battery
– Unlawful touching
Battery
• Unlawful touching
• Any unauthorized and unprivileged contact by a
medical provider with his patient in examination,
treatment or surgery would amount to a battery.
• In the interest of one's general right of inviolability
of his person, any unlawful touching of that type is
a physical injury to the person and is actionable.
Consent
• No battery if consent is obtained
• Consent to medical or surgical treatment may be
manifest by acts and conduct, and need not
necessarily be shown by writing or by express
words
• It may be implied from voluntary submission to
treatment with full knowledge of what is going on
• What about withdrawal of consent?
Withdrawal
• Withdrawal after examination is in progress
1. The patient must act or use language which can be
subject to no other inference and which must be from a
clear and rational mind.
• Must be such as to leave no room for doubt in the minds of
reasonable men that in view of all the circumstances consent
was actually withdrawn.
2. It must be medically feasible to stop at that point
without the cessation being detrimental to the patient's
health from a medical viewpoint.
Withdrawal
• The burden of proving each of these
essential conditions is upon the plaintiff, and
with regard to the second condition, it can
only be proved by medical evidence as
medical questions are involved.
• #2 requires expert testimony
Mims v. Boland
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•
•
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Patient underwent barium enema
Previous colon resection
Had colostomy
Claims withdrawal during procedure
Mims v. Boland
• "When [the doctor] . . . started giving me the
enema he was going to insert [the bardex catheter
tube] . . . into the colostomy and I told him, 'Better
let me insert that tube because I am in the habit of
taking an enema and I know how to insert these
rubber tubes without hurting, because there is
such a crook in the colostomy, it has to go part
one way and then has to be turned, because it
can't go just right straight down.'
Mims v. Boland
• "He said, 'No, you don't know how to do it,' and he continued with this
thing, and I tried to take it out of his hand and he wouldn't let me have
it. He said, 'No, you can't do it.‘
• "So with that he shoved that thing right into my colostomy and right on
in and just nearly killed me.
• "And then when he started pouring that barium into that tube that had
been inserted, he poured so much I said, 'I can't take all of the barium
because I don't have but a very small part of my large colon,' and of
course he didn't know anything about what I had had done and he still
kept giving me more.
Mims v. Boland
• 'That is just all I can take. It's just killing me,' and I just kept
getting very, very terrible pains and suffering terrible all the
time he was giving it to me. . .
"I was in such intense pain and that I didn't think I could
stand it and I just kept begging both of them not to give me
any more of it. . .
"Oh I just suffered terrible, I suffered torture, started into
just rigors and just shaking, and they had to hold me on the
table. . ."
Mims v. Boland
• Court said not an effective withdrawal
• “…merely shows protestations by the
plaintiff of pain and discomfort and
disagreement with the defendants in the
manner they administered the barium
enema.”
Battery: Final Thoughts
• From my perspective, if even close to withdrawal,
stop and have them confirm they want to go
forward
• If they want to stop, go get the doctor
• Costly to defend:
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Depositions
Expert testimony
Motion
trial
What causes lawsuits?
• These plus injury lead to suit:
– Poor documentation
– Failure to Chart
– Incomplete Documentation
– Charting before Doing
– Charting well after Doing
Best Defense: Good Offense
• Documentation:
– Crucial to the medico-legal process
– One of the most critical aspects of defense
• The medical record must be complete and
as accurate as possible when introduced
into evidence
Legal View of Documentation
• “If it wasn’t documented, it didn’t happen.”
– Not true; many ways to prove you did it
– But easier when documented
Law
Joint Commission
State Regulations
Hospital Policies and Procedures
Joint Commission
• IM.6.20.1: Medical Records contain, as applicable,
information addressing 18 clinical / case
information areas:
1. Emergency care, treatment, and services provided to
the patient before his or her arrival
2. Documentation and findings of assessments
3. Conclusions or impressions drawn from medical history
and physical examination
4. Diagnosis, diagnostic impression, or conditions
5. Reason(s) for administration of care, treatment, and
services
IM.6.20.1
6. Goals of the treatment and treatment plan
7. Diagnostic and therapeutic orders
8. Diagnostic and therapeutic procedures, tests,
and results
9. Progress notes made by authorized
individuals
10. Reassessments and plan of care revisions
IM.6.20.1
11. Relevant observations
12. Response to care, treatment, and services
provided
13. Consultation reports
14. Allergies to food and medicines
15. Medications ordered and prescribed
IM.6.20.1
16. Dosages of medications administered
a.
b.
c.
d.
e.
Strength, dose, or rate of administration
Administration devices used
Access site or route
Known drug allergies
Adverse drug reactions
IM.6.20.1
17. Medications dispensed or prescribed on
discharge
18. Relevant dosages / conditions established
during course of care, treatment, or
services
IM.6.20.2
• Medical Records contain the following
demographic information:
– Patient’s name, sex, address, date of birth, and
authorized representative
– Legal status of patients receiving behavioral
health care services
– Patient’s language and communication needs
IM.6.20.3
• Known evidence of advanced directives
• Evidence of informed consent
• Records of communication with patient
regarding care, treatment, and services
– Discussion of withdrawal of consent
Law
Joint Commission
State Regulations
Hospital Policies and Procedures
State Regulations
• Why are they important?
– Lose your license
– Hospital may lose its license
• Ga. Comp. R. & Regs. r. 290-9-7-.18 (2007)
State Regulation
• Entries in the Medical Record
– All entries in the patient's medical records shall
be
• accurate
• legible and
– Shall contain sufficient information to support
the diagnosis
State Regulation
• Describe:
– The treatment provided
– The patient's progress
– Response to medications and treatments.
• Inpatient records shall also contain sufficient
information to justify admission and
continued hospitalization.
State Regulations
– All entries shall include:
• The date of the entry and
• The signature of the person making the entry
– Late entries shall be labeled as late entries
State Regulations
• Verbal / Telephone Orders
– The hospital, through its medical staff policies, shall
appropriately limit the use of verbal/telephone orders
– Shall be used only in situations where immediate written
or electronic communication is not feasible and the
patient's condition is determined to warrant immediate
action for the benefit of the patient
– Shall be received by an appropriately license or
otherwise qualified individual as determined by the
medical staff in accordance with state law.
State Regulations
• Verbal / Telephone Orders
– The individual receiving the verbal/telephone
order shall:
• Immediately enter the order into the medical record
• Sign and date the order, with the time noted, and
• Enter the dose to be administered.
State Regulations
• Verbal / Telephone Orders
– The individual receiving the order shall
immediately repeat the order
– The prescribing physician or other authorized
practitioner shall verify that the repeated order
is correct
– The individual receiving the order shall
document, in the patient's medical record, that
the order was "repeated and verified.“
State Regulations
• Verbal / Telephone Orders
– Shall be authenticated by the physician or other
authorized practitioner giving the order, or by a
physician or other authorized practitioner taking
responsibility for the order, in accordance with
hospital and medical staff policies
Law
Joint Commission
State Regulations
Hospital Policies and Procedures
Policies and Procedures
• Developed by hospital
• Usually will specify what should be included in the
record for any given situation
– But not all situations
• NOT Standard of Care
• But can be used to show competence
• Should guide your care and treatment
• Study your policies and procedures
• Will be asked about them in deposition
Pitfalls and Issues
Pitfalls & Issues
• Common Pitfalls:
• Opinions are charted
• Not facts
• Generic language used
• For example “Verbalized understanding” for a
comatose patient
• Entries are obliterated
• White out
• All charting is done at end of shift
Pitfalls & Issues
• Physician may be notified but its not in the record
• Charting for someone else
• Symptoms are charted but not what was done
about it,
• i.e. pain during enema, etc.
• Stop procedure?
• Response to treatment
• pain reduced?
Pitfalls & Issues
• Patient’s record is obviously altered
• Unacceptable abbreviations are used
• Vague descriptions are documented
– “a large amount”
• Excuses are given
– “Meds not given because not available”
– So….what did you do about it?
Pitfalls & Issues
• Language charted suggests a negative
attitude
– stubborn, looney, etc
• Charting is wishy-washy
– “Appears to be…”
• Charting ahead of time and not actually
performing the task
Pitfalls & Issues
• Staffing problems recorded in record
– “We don’t have enough rad techs”
• Staff conflicts recorded in the record
– “Doctor is wrong”
• Erasable ink used in the record
• Documentation suggesting that the patient’s
safety was at risk
– “Almost caused perforation”
• Wrong patient was named in the record
WHAT NOT TO SAY:
• “We are so short staffed, we
are all working ourselves to
death.”
• “This hospital is full of
patients with infection.”
• “I am so tired.”
• “If I were patient, I would
look for another doctor.”
• “Dr. ______ is terrible at
catching breast cancer.”
What to Look Out For
• Proper patient identification
• Patient abuse or neglect (real or perceived)
• Failure to properly use equipment (i.e.monitors)
• Failure to properly supervise personnel
– If there are complaints about personnel, go up
your chain
ADVERSE OCCURRENCES
• Complete Variance Report for
anything out of ordinary (falls,
equipment malfunction,
injuries, etc.)
• Call Risk Management for
guidance, if necessary
• Chart Facts ONLY
• Don’t hypothesize or blame
• Don’t state “error” made
• Don’t indicate Variance Report
was Completed
• Don’t include Variance Report
in Chart
Bad Documentation
•
•
•
•
•
Time gaps,
Event gaps,
Illegibility,
Questionable wording,
inconsistencies (sudden break in pattern
of reporting)
Good Documentation
• Timely,
• Detailed,
• Reflects a patient’s reactions and/or
understanding of information and situation,
• Documents presence of staff and physicians
Pitfalls & Issues
• Narrative charting:
– Provides basis to go back years after the fact and know
what they meant when they wrote the notes in the chart
– Gives the attorney much more to go on when defending
a case
What charting says about you
• Tells the jury:
– About our competence
– About our professionalism
– About our respect for the patients and their
families,
– About our relationship with our colleagues on
the team
– About our degree of compliance with the
policies and procedures
Jury Issues
• Juries rely heavily on
charting
• Chart is the most reliable
source of information to
determine what happened
• If a provider charts
properly, the chances of
winning a lawsuit is much
better
Plaintiff’s attorney
• A Plaintiff’s attorney best case scenario
is when a provider charts with the
mindset of criticizing others or using
the chart as a medium for making
disparaging or hurtful remarks
regarding the institution and its policies.
What’s Enough?
• How can we distinguish between adequate
and inadequate documentation?
• How can we be sure that we addressed all
aspects of our interventions in our
documentation in any given situation?
Purposes of documentation
• To furnish authoritative information on
patient care
• To help verify quality of care
• To assist in the coordination of care
• To ensure continuity of care
• To seek reimbursements
Purposes of Documentation
• reflect the fundamental values of:
– Authenticity
– Quality
– Accountability
– Responsibility
– Professionalism
Purposes of Documentation
• To comply with regulations of the
government and accrediting organizations
• To provide evidence in the court of law
• To generate data for research
Problems Caused
• Incomplete documentation can negate the
purpose of documentation
• Quality of care cannot be evaluated
• Reimbursements may be rejected
• The document cannot stand as sound evidence in
the court of law
• Authenticity will be compromised
• Data generation will be inadequate
• Continuity of care may be broken, and
• Coordination of care may not be ensured.
Examples
• “ate lunch well” vs. “ate 50% lunch ”
• “called results to MD” vs. “called CBC, chem
7 results of 1600 to MD”
Six Servants
•
•
•
•
•
•
When
What
Where
Who
Why
how
Examples
• Entry No. 1
– 6/6/00 0900 IV heplock started in right
hand...........CParker, RN
• Does it answer all 6 “Servants”?
Examples
• When we invoke the six honest servants,
entry no. 1 will provide answers to when,
what, where, and who
– but not to the remaining two questions, why and
how.
Examples
• Entry No. 2
– 6/6/00 0900 IV heplock started in right hand
using 20 G cathlon, and start kit per telemetry
protocol....................CParker, RN
Examples
• Entry No.2 will provide answers to the six
questions as follows:
• When ..... 6/6/00 0900
What ..... IV heplock started
Where ..... in right hand
Who ..... CParker, RN
Why ..... per telemetry protocol
How ..... using 20 G cathlon, and start kit
Examples
• Entry No. 3
• 6/6/00 0600 foley catheter inserted
.........CParker, RN
• Entry No. 4 6/6/00 0630 ate 60%
breakfast ..............CParker, RN
Examples
• The above entries no. 3 and 4 have the
answers to when, what, and who
• Now consider the following entries no. 5 and
6 to replace the above two entries no. 3 and
4
Examples
• Entry No. 5
• 6/7/00 0600 16 Fr foley catheter inserted
urethrally by using sterile technique per MD
order successfully. The patient tolerated the
procedure without acute distress. Clear
yellow urine return noted. ........CParker, RN
Examples
• Entry No. 6
• 6/7/00 0630 Pt. sitting in chair. Pt.
scheduled for EEG, Early 2g sodium diet
breakfast served. Ate 60% by self feed.
Swallowing without difficulty......CParker,RN
Examples
• In entry no. 5, the answers are:
When ......... 6/7/00 0600
What ......... 16 Fr foley catheter inserted
Where ........ urethrally
How ......... by using sterile technique
successfully
Why ......... per MD order
Who ......... ........CParker, RN
Examples
• In entry no. 6 the answers to all the six questions
are:
• When ........ 7/30/99 0630
Where ........ Pt. sitting in the chair
What ........... Early 2g sodium diet breakfast
served. Ate 60%
Why .......... Pt. scheduled for EEG
How .......... by self feed. Swallowing without
difficulty
Who ................CParker, RN
Nursing Home case
• Patient developed infection in sinuses
• 3/31: Doctor examined
• 4/1, 7:15 p.m.
– “Resident L side of face and cheek very swollen. Resident
complains of mouth hurting”
– Calls doctor
• Rocephin 1 gram IM now, then start PVK PO QID x7 days; consult
dentist monday
• 4/1, 1:30 a.m.
– No distress noted
• 4/2, 12 a.m.
– Lying in bed
Nursing Home case cont.
• 4/2, 6 a.m.
– Resting quietly “this shift”
• 4/3, 8 p.m.
– Red area on check
• 4/3, 9 p.m.
– Called dr. to send to ER
• Emergency surgery
• Patient dies 4/7
Hospital case
• Child comes to ED on monday
– Complains of throw up and diarrhea
– “Child tolerates 16 ounces of mountain dew”
– “20 ounces fluid challenge successful”
• Child admitted to hospital Tuesday
–
–
–
–
Pulse ox is 85%
Never charted again
Not sure if normal or if any complications
Child dies from dehydration