Legal Aspects of Electronic Medical Records

Elizabeth BradleyThis presentation is not the opinion of

Palmetto Health and Palmetto Health is not responsible or liable for any damages or injuries you may receive as the result of any reliance on this presentation. Each situation is different therefore you should contact your attorney for specific questions.

Malpractice Suits Against Nurses on the RiseMedical malpractice payments on behalf of

nurses nearly doubled from 307 to 586 in 2005. About two-thirds of these were against non-advanced practice RNs.

Thirty years ago it was almost unheard of for a nurse to be named in a lawsuit.

More and more nurses are getting sued individually. Rita Kae Restrepo, RN, BS, SPAN, San Francisco General Hospital, The Nursing Spectrum August 27, 2007

Nursing responsibilities have also expanded. Busy physicians who spend less time at the bedside rely more on nurses to be their eyes and ears. Hospitalists do not know the patient and change shifts. Have to rely on nurses.

Biggest Reason For Mistakes and LawsuitsCan you guess what

this is?

What does this include?Documentation, Handoffs, Keeping

Patient, Family, Physician Informed.

Communication

LAWSUITS AND NURSESLawsuits that involve nurses are usually

civil cases that try to prove negligence and medical malpractice.

When you inadvertently fail to document that you provided the care as specifically outlined by an order or standards of care, you could be held negligent.

When you fail to document that you notified a physician of change in patient status you could be held negligent.

Anatomy of a Medical Malpractice LawsuitIn a medical malpractice action, a plaintiff

must prove the following to establish a case:1. Plaintiff (patient or patient’s family) files a

complaint. Complaint states that the facts of the cases and allegations regarding care or lack of care which caused harm to the patient.

Must show the generally accepted standards of procedure or practice that would be followed by the average competent practitioner under the same or similar circumstances Evidence: (expert, policies and procedures)

Proving Medical Malpractice2. That the defendant practitioner departed

from these standards. (evidence: medical records or witnesses)

3. The departure was the proximate cause or direct reason for the alleged injuries or damages. (evidence: medical expert)

Hospital may qualify for caps on the liability if a charitable or state entity.

Statute of limitations

Recognize The Importance of Medical Records Here?

WITNESSESPlaintiff will have fact witnesses that will include

family members and possibly the patient. They will have detailed memories of the patient stay and events.

Defendants will have to use their documentation.Defendants will also be witnesses. The doctors,

nurses and staff involved in providing patient care will be witnesses in the trial and in depositions.

In many lawsuits related to medical errors or malpractice, a medical or nursing expert will be retained to review the medical record and render an opinion as to whether a provider, the staff or the facility met the acceptable standard of care. Consistent, concise, and organized documentation is crucial to the expert’s ability to make such determinations. So, if no documentation regarding care or observations than hard to prove care was provided.

PUNITIVE DAMAGESGrossly negligent: conduct or a failure to

act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result.

In order to receive punitive damages the Plaintiff must show that hospital or nurse was: reckless, willful or grossly negligent.

Medical Record Is The Most Important Evidence To Prove Nurse Met Standard Of CareCharting is the most important evidence to

prove nurse met standard of nursing care. With the introduction of electronic medical

records there is a loss of the “story” of the patient’s treatment.

Nurse will rely on these records to demonstrate the care that was provided.

This information may be introduced as evidence in court, hearing or deposition.

Nurse will also rely on these records since may not remember the situation.

Issues with Electronic Medical RecordsEasier to make mistakes.Loss of descriptive documenting.Too much unnecessary information. Important information lost.Once an error is in the system it perpetuates itself through the

network.Networks do not speak the same language.Problems with alerts in medical record. Do not capture issues.Work arounds cause errors. Defeat purpose. Medical guidelines and best practices are not updated

automatically.Time synchronization.Check boxes don’t reflect patient condition or patient care.Clinical notes do not highlight the most important patient issues.Medical guidelines and best practices not updated automatically.Alerts turned off.

Issues ContinuedInformation does not always automatically

flow to entire record.Audit trails have shown that nurses and

physicians are not reviewing all of the data.Critical information regarding x-rays, labs

and medication are not completed properly.“Cutting and pasting” of medical records is

a potential danger.Risks of software bugs, computer

shutdowns and user errors.

Capture Information In Free Text Adds to the accuracy of the record. Often, the "drop box" does not provide an adequate selection

to describe the history or physical. In anesthesia cases, for instance, the EHR drop box may allow

only a description of "awake," "drowsy," or "unresponsive." These choices, may not give an accurate picture of the patient. If a patient is technically awake but not properly responsive, that should be documented.

Similarly, there are times when the general description of how a patient is looking can be informative and integral to the physician formulating an assessment.

Describe the care you are providing patient and the reasons you are providing this care.

Describe everyone contacted and all follow up on tests.

Issues With EHRThere is a risk of error in checking preset

indicators.Preset indicators may fail to adequately describe

situation. Electronic medical records have better legibility.Concern regarding labs and follow up.One of the biggest concerns regarding EHR errors

relates to default values. A recent advisory released by Pennsylvania Patient Safety Advisory in September 2013 states that this is a serious issue. In the advisory analysts identified 324 events related to software defaults, 200 related to wrong time errors and 71 related to wrong dose errors. HCPRO January 14, Volume 15, Issue 1.

Journal of American Medical Informatics Association (JAMIA)JAMIA convened a task force in 2011 to review

the way health IT systems are designed.Dr. Blackford Middleton, corporate director of

clinical informatics research and development at Partners Healthcare System and 2013 AMIA chair-elect, told InformationWeek Healthcare. “We’ve been installing it and not measuring it like we would any other intervention.”

What happens to the errors in the electronic medical record? There is no way to correct these errors they may even get forwarded on in the system.

Medical Errors In Hospitals1. Medical errors happen when something that

was planned as a part of medical care does not work out, or when the wrong plan was used in the first place.

2. A 1999 report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in US hospitals each year as a result of medical errors.

3. Errors in health care have been estimated to cost more than $5 million per year for a hospital.

4. More people die as a result of a hospital error than in a car accident.

Reliance by other care givers. Remember communication.

History Trend Part of puzzle in helping patient.

Review each entry before completing. Type slower. Read carefully. Check entries. Example. Million dollar check. Observe patient carefully before entering

information into computer. “No change” is not descriptive nor does it

meet the goal of documenting. Charting should describe patient care. Charting should describe care provided. As patient’s condition changes, nurses

should change plan of care. Changes should be reflected in charting.

1. Check that you have the correct chart before you begin entering.

2. Check to make sure you have the right patient. 3. DOCUMENT ACCURATE INFORMATION. REVIEW THE

INFORMATION THAT YOU HAVE JUST ENTERED TO MAKE SURE IT IS CORRECT BEFORE SIGNING YOUR ENTRY.

4. Chart precautions or preventive measures used and why. (Bed rails)

5. RECORD each phone call exact time, message and response. (DO ALL THREE)

6. Chart patient care at the TIME you provide it. 7. If you remember something later-document as late entry and

include date and time. 8. Document whole story. Facts, what you see, smell and hear. 9. Do not chart “no change”, “good morning”, “usual day”, “bad

night” Should be your documentary of the patients care while with you. Remember you are a team and the team needs play book… CHART VITALS- Make sure accurate. If concerning REPORT

IMMEDIATELY.

1. Do not-do not chart care ahead of time. Facts may change and it may never happen. This is considered fraud.

2. If you are charting someone else’s observations note that.

3. Don’t use incorrect abbreviations. 4. Don’t chart symptom without stating what you did

about this. 5. Don’t write imprecise descriptions: leg tingling,

large amount of blood 6. DO NOT ALTER – If you have to make a change

document as a late entry and explain. 7. Don’t wait until end of shift to chart. DO NOT DOCUMENT CARE THAT YOU HAVE NOT

GIVEN AS BEING DONE FOR PATIENT EVER!!!! THIS IS FRAUD.

CHECK PATIENT NAME!!! SAY THEIR NAMELISTEN TO PATIENT QUESTIONS OR CONCERNSREAD ANY PAPERWORK THEY FILL OUTALLERGIES?The medical and nursing admission assessments

provide a overview of the patients status at the time of admission.

Talk to the patient. What is the complaint, concern, history. Listen to the patient. The patient or family member can tell you what you need to know about the patient. Remember to COMMUNICATE.

Report what the patient/family say-COULD BE VERY IMPORTANT TO CARE (“I forgot to tell you that I do not know when my blood sugar drops at home…My wife finds me confused when this happens.” NEED YOUR HELP TO DO ALL OF THIS

Look at patient’s risk for developing a pressure ulcer is important to do on admission.

Look at: nutrition, moisture, incontinence, mobility and sensory perception, complaints

Review for a follow-up when changes occur or transfer to another unit.

REPORT CHANGES

Documentation should continue consistently through the patients stay. If the documentation is inconsistent then it is not effective or valuable at all.

Continue to treat, take vitals and document. Concerns regarding “no change.”

If vitals seem incorrect, concerning or alarming. Recheck. Get assistance.

Reports patient complaints If patient is experiencing for example:

numbness and tingling, document and advise physician.

Later, is it worse, better? Input, output? Follow patient and document plan of

care as patient’s status changes.

Must document action taken to address abnormal condition:

Physician contacted: time, physician spoken to, physician’s orders

If unable to reach physician-document this also. Document every call.

Document all changes in vital signs whether dramatic or not.

Every abnormality should be recorded until a satisfactory result is obtained.

Why do you think they are called “vital signs”?

Review of charts shows lack of documentation of vital signs. Or incorrect vital signs.

Call for help-rapid response team.

Contact physician. Don’t just watch

bad vital signs or vital signs that are not improving. Trying to tell you something.

When there is a observation of a patient’s abnormal vital signs, must notify the physician when necessary.

Fever Blood pressure Respiration Pain Numbness, lack of feeling Failure to void Vomiting Examine and document.

CASE OF MISSING VITALS NURSE TECHNICIAN FOUND NEGLIGENT BY JURY

Although this can be extremely difficult if the patient is in a crisis and needs to be stabilized. Many legal claims and peer or professional review will focus on the notes taken during the code.

Length of time. What was done. Who was contacted. Who participated.

ROLE YOU PLAY: NURSE’S REPORT TO EACH OTHER AT CHANGE OF SHIFT. NURSES NEED TO COMMUNICATE REGARDING CARE TO BE GIVEN.

Situation: patient name, room number, admission date, physician

Background: Admitting diagnosis, surgery, significant past history, allergies, code status, DNR, procedures done in 24 hrs.

Assessment: Biophysical and or psychosocial assessment, abnormal vital signs, pain score, what to manage pain?

Recommendations: Concerned about? Watching? Need to do? Warning signs?/

1. Give important information to receiving nurse upon transfer.

2. What are we concerned about? Monitoring? Meds? Vitals?

3. Patient care should not deteriorate when there is a hand off.

4. This is a crucial time in a patient’s treatment.

Is the patient still ready for discharge? If not then notify the physician.

Document patient’s condition at discharge.

Document information given to patient and patient’s family regarding care and concerns.

Document medication and equipment information.

Teach back method. Do they understand.

Many cases over discharge issues. 1. What was patient’s condition at

discharge? 2. How recent were vitals taken? Any

relapse? 3. Discharge instructions given? 4. Patient understand? Patient

concerns. 5. Discharge instructions workable? 6. Any equipment needed?

1. Co-workers 2. Physician 3. Patient 4. You! Communication should be with ? 1. Co-workers 2. Physician 3. Patient

Essential to good patient care. Think documentary. Why? 1. It acts as a communication tool

that fosters the coordination of care by multiple care givers that VERY BUSY.

2. It is a historical record used to determine the what is happening to the patient, symptoms, medications, danger areas.

3. The medical record is evidence.

High profile medical errors such as operating on the wrong body part or receiving a mistaken dose of drugs should take a back seat to a far more common and insidious mistake, a new report reveals.

The most common mistake is failure to rescue.

Will you rescue the patient? Will you listen to the family? Will you be the one?

Between 2004 and 2006, failure to rescue claimed more than 188,000 lives, amounting to 128 deaths for every 1,000 patients at risk of complications.

Another report states that 61,000 people die a year from failure to rescue.

What to look for: CHANGES IN VITAL SIGNS, respiratory failure, pulmonary embolism, deep vein thrombosis, sepsis and abdominal wounds.

See here you are the key! You spend more time with the patient than anyone else. You are the first to notice these changes.

You are the life guard!

Failure to rescue is not whether you get the wrong IV in the first place. It is how fast do people pick up that you are going south and turn it around.

Watch them die. Most common areas of mistake: just coming from surgery taking pain medications Watch for subtle signs of change: get family to help

(shortness of breath, nausea, delirium) VITAL SIGNS CHANGES

Condition H Moved from unit to unit. (DANGER) Blood Pressure

Blow the whistle. Rescue the patient.

You see the patient more than anyone.

Direct contact. You see vital signs

and changes. Report concerns. Communicate

concerns. Part of the rescue team.

The patient complained of nausea, dizziness, abdominal pain, and itchy skin shortly after receiving his first 100 mg dose of Macrodantin. His nurse was not concerned, though. And it was evening-they would wait until tomorrow. By morning, after two more doses of the medication, he was vomiting, had a high fever and early symptoms of shock.

The fever was not correctly documented.

Nurse monitored the patient’s response, but the nurse tech failed to follow-up on the negative reaction and was found negligent.

This patient comes out of surgery and the nurse notices heavy drainage from the surgical wound. Changes dressing. Nurse fails to document that she changed dressing and her assessment of heavy drainage before she leaves. The next nurse comes in and notices heavy drainage from the wound. She checks the nurse notes and finds no evidence that the dressing was changed. She considers the amount of drainage normal for the period of hours. Remember: she did not know about prior dressing change. Next nurse tech comes in and does the same thing. Patient codes. No one knew that patient was getting more serious because no one charted. Hospital sued and nurses and nurse technicians found negligent.

Bed rail down, high-risk patient got out of bed and fell, court finds negligence. Bed rail was to be up.

Patient has Alzheimer's and is a strong risk for falling. The hospital had a fall injury prevention protocol.

The protocol required the hospital to assess and re-assess the patient’s physical and mental condition.

A nurse found the patient face down on the floor in the hallway at 7:00 a.m. One bed rail was down.

When a health care provider disregards or intentionally violates the institution’s own internal patient-care protocols it is evidence of negligence. Nurse found negligent.

No documentation to provide otherwise.

Jury finds no evidence of negligence. THE MOST IMPORTANT FACTOR

INFLUENCING THE COURT WAS THE NURSING DOCUMENTATION.

Nurse carefully assessed the patient’s skin integrity and documented.

Care plan was documented. Documented turns every two hours.

Nutritional assessments and flow charting documented.

Carefully documented progression of skin lesions and noted they called in physician. Documented interaction with family.

Elderly patient was admitted to the hospital for numerous medical problems. Her right knee had been amputated and she was admitted for her dialysis treatments for end-stage renal disease.

Placed near nurses station in a chair for observation after dialysis. Unrestrained she fell. After hip surgery she developed a bed sore. Stage III decubitus. She eventually passed away.

Family sued for nursing negligence. Verdict was for negligence leading to her fall and

negligence leading to her skin breakdown. As a general rule, the courts will accept testimony

about a person’s habits or general practice. A nurse can testify that she or he out of habit turns a patient every two hours. However, in this case the medical record did not reflect this. The deficiency in the charting supported the families allegations. Chart also pointed to a glaring two day delay in getting the mattress the physician ordered and in handling the skin breakdown. Further, no fall assessment was done/ no monitoring of patient in the chair.

2/5 2 small skin tears on the sacral area which were treated with duoderm

2/11 1.5 x 1.5 non-stageable ulcer either stage III or IV with yellow necrotic tissue

2/19 wound size of dime 2/20 wound size of nickel/ snack 2/21 2.4 x 2.4 non-stageable with yellow necrotic

tissue 2/27 new Tegasorb applied / snack 3/2 wound care with brown foul smelling drainage 3/5 11.5 x 6.5 non-stageable- soft brown necrotic

tissue-foul smelling / snack 3/7 surgical debridement at bedside by surgeon

bone involvementDocumentation regarding incontinence on admission and

then no further documentation.

Frequency of documentation. Notification of physician? Accurate measurements? Treatment and plan? Notification of skin care team? Dietary plan? What patient ate. Incontinence.

Joint Commission and South Carolina Law have provided several rules, regulations and statutes regarding documentation in the medical record. Hospitals have policies and procedures regarding all aspects of documentation and patient care. Be familiar with these. It is required. When you are deposed or go to court you will be asked about these policies and procedures.

Provides in pertinent part that medical records contain: Adequate and complete medical records shall be written for ALL patients admitted to the hospital and newborns delivered.

All notes shall be legibly written or typed and signed. A minimum of medical records shall include the following information:

Admission record. History and

physical w/in 48 hours.

Provisional or working diagnosis.

Vital signs. Pre-operative

diagnosis. Medical

Treatment

Complete surgical record: technique, findings, statement of tissue, organs removed, post-operative diagnosis.

Report of anesthesia

Review each entry before completing. Type slower. Check name, observe patient carefully

before entering information into computer. Speak with patient and family.

Do not use “No change” Charting has to describe patient care. As patient’s condition changes, nurses

should change plan of care. Plan of care should be reflected in

charting.