Factual and Objective Documentation

Incomplete documentation of critical events is a standard error and interferes with effective representation for defense attorneys. OB and Neonatal providers encounter recurring situations that account for fetal/neonatal injuries. The most frequent mistakes made by providers occur when attempting to document the fetal monitor strip. Other failed attempts at competent recording in the record deal with whether timely preparations are made for preparation and intervention at delivery. If this information is missing, trial lawyers will stress to the jury that these actions were not taken, despite the insistence of the providers involved. Lack of documentation regarding intrauterine resuscitation measures during labor, NRP steps, and other timelines may leave you defenseless at trial if not documented in the record.

Once again, it will be hard for you to insist that you acted appropriately when there is no objective evidence. Insisting that thorough documentation is something you “always do” or that it is your habit and practice will not suffice with a judge or jury. Your claims of appropriate action in an emergency will seem weak, and the lawyers will emphasize this. Furthermore, any expert witnesses for your defense may not be able to support you at trial if there is no documentation of what you did.

Documenting Critical Events

Since the advent of electronic records, the primary challenge for providers is balancing patient care with data entry. Of course, your patient care is the most important, but the demands of EMR add the burden of defending yourself in a lawsuit. Documenting critical events in high-risk situations is essential. There is no question that it is nearly impossible to tend to your patients' needs while documenting contemporaneously with events, especially when everything is going wrong. I have no easy answers regarding this dilemma. The midwife in me says, take care of your patient first. Complete the documentation later. However, the lawyer says, get it down in the record any way that you can. The best advice I have heard is: “Do your best as events unfold; have a plan: * cheat sheet *flow sheet *bed sheet

Documenting and delivering patient care in emergencies has presented medical/legal issues ever since the conversion to electronic charting began. Paper charting used to allow for addenda, but this is now more complicated. We can thank lawyers and the popularity of litigation for that. Hopefully, formal scribes can be assigned in frantic situations, or providers will walk around with headsets, dictating. It seems a feasible way to provide critical care while contemporaneously documenting it. Critical events with unfavorable outcomes often give rise to lawsuits. To properly defend care in a suit, documentation must show:

- timely recognition of the adverse event (no 30 minute rule?; know what your hospital’s time goals are from decision – to – delivery).

- Timely intervention (you may be liable for not assessing fetal condition and planning to have appropriate team members available for delivery).

- consultation and timely mobilization of the team

- a coherent, documented timeline

Try to document an assessment in anticipation of the newborn's needs and the personnel who should be present during the delivery. Retain the gloves package, scrub pants, bed sheet, arm, hand, or leg (take a picture) that you document. Better yet, carry a notepad in your pocket at all times. Any notations made contemporaneous with the event, and away from the computer, should be saved, somewhere. Expert witnesses have traditionally allowed a 2-to 3-minute window for patient assessment before making a decision.

Details are crucial and should include identification of all involved. You never know when you may need to produce evidence in your defense. Again, any contemporaneous notations/pics and times, recorded off-the-record, that support your EMR charting can be saved as evidence and, perhaps, retained by risk management. Depending on your State’s statute of limitations, the time between events and litigation can be many years.

All communications regarding fetal status prior to birth are recorded. These are crucial for your defense and have direct implications for the baby’s condition after birth (e.g. meconium, late decels, severe variables, bradycardia etc). Team communications and plan must also be documented. Your liability in regard to foreseeable harm will be highlighted if you fail to assess fetal condition and mobilize the appropriate team members for resuscitation.

Excessively late (hours/days) entries will be scrutinized. Lawyers would like to think that they know what happens during a maternal/infant emergency. But they cannot comprehend or fathom what has happened. Entries that change the original documentation will be scrutinized and considered suspicious.

Deposition Excerpt:

Atty: Do you know what an audit trail is?

Nurse: I am aware of what it entails, sure.

Atty: You know that it documents when you have accessed the chart?

Nurse: Correct.

Atty: Is there any reason for you to believe that you accessed the chart at a time other than 1434 to enter progress notes?

Nurse: No.

Atty: So, Nurse ------, are you sure that you did not go into the chart, type your progress notes and then go back later and change them?

Nurse: I don’t recall. I don’t know. I would say no.

Atty: Why would you say no?

Nurse: I don’t recall going back and doing that. I don’t remember this at all.

This nurse significantly revised her notes following a poor outcome. Legally, it was a costly and unfavorable outcome for both the nurse and the hospital.

Late documentation can be considered acceptable; however, with key information, the sooner it is documented, the better. Remember to label these entries for what they are: addenda. When sued, your best defense is to emphasize that delivering care to your Patient was the priority. You are considered responsible if you are able to document timelines and pertinent events as you recall them; ideally, before the end of the shift. Any later than this may be regarded as CYA. Hopefully, you can create notes contemporaneously with events; however, in the time frame immediately after an event, it is helpful for you to jot down notes and transcribe them to the record. Days later is still acceptable if you have a flash of memory that offers important facts; label and explain your note. Late entries require explanation along with the note. e.g., addendum, memory, conversations with family that refresh memory.

Mistaken Entries:

With EMR, accidental charting on the wrong patient is an innocent mistake. Each system has specific recommendations to follow in this situation. In legal E-discovery, if there is a record of you entering a chart, you can be named in a lawsuit, even if you entered the record accidentally. Always ensure you have a valid reason to be in a chart. Never let curiosity lead you to enter a chart where you don’t belong. There will be trouble for you, such as violating a patient’s right to privacy and other HIPAA issues.

With lawsuit-prone patients/family, document conversations but stay objective and factual. Avoid statements which reflect your reactions e.g. “Patient is angry and demanding, won’t let me explain process”. The preferred statement: “Patient states that she does not agree with the plan of care and has asked for copies of her records.”

How do you spot lawsuit-prone patients/families?

- uncooperative with care

- family members who refuse to leave

- threats and criticisms regarding care

- Defensive and hostile behavior

Finally: Read what you document, use proper punctuation, and correct typos! Examples:

-”Large brown BM up walking in halls”

-”TheRapist in to see patient”

- “While in the emergency department, she was examined, X-rated and sent home”

-” Patient is alert and unresponsive

-”Healthy-appearing, decrepit 69 year old female”

-”Rectal examination reveals a normal-sized thyroid”

-”Observed to be sleeping quietly”

-”Bleeding started in the rectal area and continued all the way to Los Angeles.

- “Vaginal packing out: Doctor in” **

** Funny Nursing Notes - Nurse Humor

https://allnurses.com/funny-nursing-notes-1415591/

https://www.midwivesontrial.com

EMR Documentation Part V: For OB, Neonatal, and Midwifery Providers

News Briefs: Midwifery Issues and Practice For Consumers, Attorneys, Nurses, and Physicians