Responsible Documentation of Patient Care: Avoiding Legal Risk III
Negative Conversations
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Avoid comments in your documentation that can be considered “blaming” e.g. “I gave the order to the nurse but she never seems to listen to anything I say”. Generally avoid recording any negative conversations or disruptive team member behavior. This scenario will make any plaintiffs’ attorney jump for joy. Complaints about other team members should never be found in the medical record. If a jury sees defendants blaming one another, experience has proven that they may assume negligence despite direct evidence.
It is important, however, to document comments that affect patient care e.g. “None of you know what you are doing. I’m taking my wife out of here. She will be better off having the baby in the car.” Remember to protect yourself and the care you are providing. Don’t make inflammatory comments in the record or stoop to the level of an angry and inappropriate family member; just document objectively without leveling judgment.
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With particularly angry situations, you might have to document a grossly inappropriate comment or provider behavior. Your duty to your patient is #1. Your knowledge, care and integrity is #2. You have no duty to protect an abusive or inappropriate team member. Comments that may be interpreted as “blaming” have no place in the record. Objectively record, if you must, that there are differences in management, although you do not agree. It can be difficult, but strive to be objective. At trial, beware of attorneys questioning you about your working relationships. Evidence of care providers arguing will never be helpful for the defense. Attorneys may be aggressive in their questioning, hoping to stir up drama. Stay calm.
Critical Thinking
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Lawyers and expert witnesses consistently look for evidence of critical thinking in the management and documentation of care. Evidence of a lack in critical thinking is gold to trial attorneys. When you demonstrate critical thinking in your documentation, it reflects the complexity and diversity of your knowledge and practice. When documenting in the record, try to distinguish between relevant and irrelevant facts. Intelligent presentation of your data, recognition and documentation of patterns, differential diagnoses, and intelligent interpretation of data will reflect critical thinking.
Through your documentation, show that you have identified problems or potential problems with the patient’s condition. Always indicate that you are communicating with other members of the care team, and consulting appropriately. In urgent situations, that require you to document later, let your documentation reflect that you understood what was going on. With EMR, in critical or complicated situations incorporate free text in addition to menu items.
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Document Using Standard Terms
Use consistent, standard terms specific to your field. With EFM interpretation, always employ NICHD (Eunice Kennedy Shriver National Institute of Child Health and Human Development). Describe neonatal injuries or condition in accordance with your professional organization. Use of inconsistent and outdated terms are magnets to attorneys: They will employ them to establish bases for lawsuits, which can cause confusion.
Deposition Sample:
Atty: The anesthesia note has the diagnosis of “fetal distress” on it. Does that term still get used around your labor and delivery unit?
Nurse: I’m sure it does.
Atty: Is that a term that you use?
Nurse: I’m sure I have.
Atty: What does fetal distress mean to you when you’ve used it?
Nurse: I mean, it’s distressed. The baby is giving me some indication that, you know, there’s something going on that we can’t see.
Atty: When you say distressed, is one of your concerns that the fetus might be experiencing hypoxia as the cause of the distress?
Nurse: Not necessarily. That’s - not for me to really determine.
Atty: But you do know that hypoxia in a fetus can be reflected as fetal distress on the strip?
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Nurse: I’m assuming that I’ve learned that at some point, yes.
Atty: And when you say you know how to read a fetal strip, you would know absent, minimal, moderate variability when you see it?
Nurse: I can differentiate between them.
Atty: Can you differentiate between a reassuring and non-reassuring strip?
Nurse: I can but those terms are not typically used.
Atty: Ok. What terms are used?
Nurse: A reactive and non-reactive.
Atty: Ok. What do those mean?
Nurse: One looks good and the other doesn’t.
Atty: Have you ever used the terms reassuring and non-reassuring when communicating to a physician or colleague?
Nurse: I’m sure I have.
Atty: What message are you trying to communicate about the strip? Is reassuring and non-reassuring an assessment phrase you would use at the time you took care of this patient?
Nurse: I’m sure it would have been. I mean, whether its react – like I said, I use reactive and non-reactive. When its a reactive strip, it’s – I mean, it looks-the best way that I can describe it, it looks good.
Atty: Do you know what a Category 3 strip is?
Nurse: Yes I do. It would be absent variability or something like that and would be, to me, non-reassuring. I can’t remember the specific like medical description of it. (From a Defense attorney’s standpoint, this is NOT a provider that you want to put on the stand. She actually handed this case to the Plaintiff. Case ultimately settled.)
Inflammatory Terminology
Fetal Distress => imprecise, not preferred
Birth Asphyxia => avoid this term as a diagnosis
Birth Trauma => use only if actual, witnessed trauma (e.g. baby pulled from the vagina with force or dropped on the floor)
Hypoxic Insult => if you are wanting to refer to HIE (hypoxic ischemic encephalopathy), then document identification of seizures, multi-organ failure, decreased tone, etc.
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Precise Terminology
Non-reassuring FHR pattern: better than “fetal distress” but it is essentially meaningless.
Document what what you see: Category 1, 2, or 3 – better choice; make sure you know the definitions.
Emergent vs. Urgent C-Section
1. Elective
2. Non-elective
3. Emergency → attached to predetermined guidelines of your specific institution (know your times) e.g. 30-minute rule or sooner.
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