Legal Issues and Documentation Author: Evelyn M. Hickson, RN, MSN, CNS, WCC.

Legal Issues and Documentation

Author: Evelyn M. Hickson, RN, MSN, CNS, WCC

ObjectivesBy the end of the presentation the participant

will be able to:

1. Discuss the legal implications associated with working in the Perinatal area

2. Define the following terms: standard of care, accountability, negligence, malpractice and failure to act

3. Discuss the importance of clear, concise documentation

4. State the component parts to and charting

Perinatal Issues

More than one patient at a time – mother and baby / babies

Multiple areas of care – triage, antepartum, intrapartum, postpartum, OR, recovery room

Public expectations of the “perfect birth and baby”

Trends in MalpracticeObstetrics one of the areas with the highest medical malpractice riskStatute of limitations for the child in OB is 18 – 21 years in most states of the U.S.Damaged infants are eligible for a malpractice settlement that will assist with caring for them for the rest of their lives

Trends in Malpractice

Increase in the number of malpractice suits where more non-physicians are sole defendants in lawsuits

Erosion of the MD as the “Captain of the Ship”

Lawyers are actually taught how to sue medical professionals

Direct Nurse Liability

Nurses (LPNs and RNs) are considered licensed personnel that are trained and deemed competent – thereby are accountable for their actions

Direct Manager Liability

Increased numbers of charge nurses and nurse managers involved in litigations as witnesses and co-defendants

Each manager is accountable for the outcomes of care at his or her level of authority in the institution

Vicarious Liability

Hospital or employer is accountable for acts of the employee within the context of their job description

Nursing Competency

Based on: Performance Training Experience Standards of Care

Standard of Care

What a reasonable and prudent nurse given similar experience and training would do under the same circumstance

Standards of CareMore than 20,000 published standards National Practice Standards (COBRA/EMTALA) National Practice Guidelines (ACOG, AAP, CDC,

NIH, AHA, etc.) Institutional Policies, Procedures, Practice

Standards and Guidelines Community Standards JCAHO International Practice Standards Board of Registered Nursing / Department of

Health Professional Organizations (AWHONN, ACOG)

Affirmative DutyNurse responsibility to: Do No Harm PREVENT HARM

Requires that we independently evaluate MD/provider orders, plan of care, treatments and procedures for appropriateness Nurse responsibility to determine if the orders are NOT in the best interest of the patient then required to : Question Clarify Challenge Change Implement the chain of command to facilitate process

Physician Code of Ethics

American Medical Association Code of Ethics

“Where orders appear to the nurse to be in error or contrary to customary medical and nursing practice, the physician has an ethical obligation to hear the nurse’s concerns and explain those orders to the nurses involved.

In emergencies, when prompt action is necessary and the physician is not immediately available, a nurse may be justified in acting contrary to the physician’s standing orders for the safety of the patient.”

Affirmative Duty Documentation

WHO you have notified by name and title

WHAT you have told them – specific, factual and true

WHAT you are asking for – specific, clear

WHAT was the response to your request

Charting Example

“Drop in FHR to 90s. Pt complains of increased abdominal pain, MD notified”“Repetitive variable decelerations to 90 bpm for 1-2 minutes with slow return to baseline. Pt turned to right lateral, pitocin turned off, IV fluid bolus, 02 on at 10 L per non-rebreathing mask. Cervical exam 4 cm/ 75%/-1 Dr. Smith notified and requested to come to unit to review strip and assess patient, states he is on his way and will be on the unit within 20 minutes.”

Chain of Command

Nurses are responsible for knowing the chain of command at their place of employment and When to implement How to access all levels How long to wait before going up to next level

Identify what is the line of authority for: Nursing Medical Administrative

Liability

“ The provision of substandard care that results in patient injury”

May & Mahlmeister, 1994

Professional Liability

“Responsibility for acts of negligence”May & Mahlmeister, 1994

Act of Commission

“Doing something incorrectly or outside the accepted standards of care.”

May & Mahlmeister, 1994

Act of Omission

“Failure to do something that should have been done”

May & Mahlmeister, 1994

Routes of Reporting

Quality Assurance / Unusual Occurrence forms / Incident Reports Internal Continuous Quality Improvement

Process Protected

Formal memosWritten or phone memos to state agencies (Whistle Blowing)

ReportingMandates – abuse, criminal actsNegligenceMalpracticeDiversion of narcoticsDo not refer to QA or Unusual Occurrence, memos in the chartDo not refer to any protected QA review process in the chartThe only information that should appear in the chart are the facts of the situation

Professional Accountability

Definition:

Responsibility for outcomes of care

Professional AccountabilityNurse must be able to:

Identify areas of limitations, skills and expertise Request appropriate training and

orientation to new skills, tasks, equipment, and roles

Performs nursing functions that she / he is deemed competent and safe to perform by education, experience, training and current expertise

Have knowledge of the law and standards of care

How to Maintain Professional Accountability

Stay current in practice

Join professional organizations

Attend conferences

Participate as leader within unit

Scope of PracticeSet by State(s) practiced in, national and institution standards (practice grid)OrientationCompetency toolsPerformance AppraisalsNurse Practice Act – set by state: nurses “help people cope with difficulties in daily living which are associated with actual or potential health or illness problems or treatment thereof which requires a substantial amount of scientific knowledge or technical skill”

Negligence

Failure to have the knowledge and the skill to perform a duty that any other prudent nurse would given the same or similar circumstances.

The Commission of an act The Omission of a duty

Negligent Supervision

Negligence on the part of any nurse who has supervisory responsibility for new staff, staff who are floating, LPNs, Aides, etc…

Also is applied to any nurse who continues to delegate or assign duties to another nurse, aide, etc… that have known deficits or who lack competency for that task.

Gross Negligence

“An extreme departure from the standard of care that would have been practiced by a competent registered nurse in similar circumstances.”

Barter & Furmidge, 1994

*Applies to any licensed professional

Most Common Allegations of Negligence

Failure to assess and monitor the patient: As frequently as required by the

patient’s condition or policy or guidelines

In accordance with provider order

In compliance with the standard of care

Most Common Allegations of Negligence

Failure to communicate and report

In a timely manner Persistently if patient condition

warrants Implementing the chain of

command Documenting critical data and

reports

Most Common Allegations of Negligence

Failure to ensure patient safety

Failure to evaluate for risk for falls – physiologic, neurological, psychological, etc…

Failure to provide safety devices for patient (for example: side rails, call light)

Most Common Allegations of Negligence

Medication Errors Failure to follow 5 rights Failure to check the labels

Most Common Allegations of Negligence

Failure to follow institutional policy, procedures and guidelines

Negligent telephone triage and advice

Violation of HIPAA – patient confidentiality

Inappropriate delegation and/or supervision

Malpractice

“…refers to the negligent acts committed by a person in his or her professional capacity. It is professional misconduct, unreasonable lack of skill in professional duties, evil practice or illegal or immoral conduct.”

Roland & Roland, 1989

Most Common Allegations of Malpractice

Patient falls – with or without the side rails upFailure to monitor the patient – undetected changes / deterioration in condition

Failure to communicate and report changes in a patient’s condition in a timely manner and to not be persistent in requesting medical interventionFailure to clarify questionable orders or treatmentsMedication errors

Most Common Allegations of Malpractice

Inadequate discharge planning and inappropriate or premature discharge of a patientNot identifying patient safety risks

Injury due to improper use of equipment

Failure to perform treatment properly

Duties Specific to the RN

Perform Complex Assessments on UNSTABLE patients Comprehensive admission assessmentReassessment after invasive proceduresVerification/validation of abnormal

assessment data

Duties Specific to the RNUses nursing judgment to interpret patient dataForms opinions and reaches

conclusions by analyzing dataDetermines the meaning and

significance of assessment data and observations made by LPNs

Develops or alters the individualized plan of care as appropriate to the patient condition

Duties of the LPNMake observationsCollect dataPerform simple assessmentsReports abnormal findingsCompletes tasks delegated by RNDocuments observations made, data collected, nursing care given and patient responses to careDocuments reports of any problems, issues and abnormal findings to the RN

Nursing Process1. Assessment of the patient2. Develop a plan of care3. Implement the plan of care

including interventions that are appropriate for the results of the nursing assessment

4. Evaluation of the plan or the interventions implemented

5. Communication and documentation with the rest of the health care team

What do patients want?

90% of time patients do not tell you that they are unhappy

Action to Take - LEARN

Listen to the patient and customer with sincerity

Empathize with their situationApologize for their experience or the

mistake if one has been madeRespond with an appropriate actionNurture the relationship

and follow up

DocumentationReflects the care given to the patient

Demonstrates results (outcomes) from interventions

Identifies changes in the patient condition

Reflects changes in the level of care

Facilitates planning and implementation of quality and safe patient care

Documentation

Coordinates care given by each member of the health care team

Provides a place for an exchange in the information regarding the patient’s condition and treatments

Provides data for risk management, utilization review, case management, quality improvement, reimbursement and research

What to Document

Any intervention or action done in response to a problemProcedures, treatments and medications including when they were donePatient’s response to interventions and medicationsAnything that you use to protect the patientAny observation or assessment madeThe care you have given

What to Document

Variations from assessments and changes to the plan of careCommunication with other members of the health care team including providers and attempts to reach care providersContent and patient response to patient educationStatements made by the patient

What to Document

Interventions done to make the patient more comfortable

Acceptance and transfer of care (report)

Each entry to have date and time

Signature in document that reflects professional standing

Steps taken to solve a problem

Use correct spelling and grammar

Late Entries

Legal and permissible

Usually considered late entry within the shift or one shift later

Days after = Addendum

Must be dated and timed at the time the note is actually written

Become less credible the LONGER you wait to write them

Recreation of Events

Legal and allowable

Should be written prior to leaving the institution after event/crisis occurred

Be as detailed as possible

Factual

Common Documentation Errors

Use of labels (names) to describe patient behavior

Reference to staffing

Reference to filing a QA report

Words used to try to explain mistake “accidentally”, “somehow”

Editorial comments – dirty laundry

Common Documentation Errors

Charting that you “informed” when you have only mentioned it

Referring to another patient by name

Vague entries

Omitting consultations with other peers and members of the health care team

Sample Chart Notes

Pt is a 23 y.o. G6 P5. Past hx of active drug use. Screaming and crying like a toddler having a temper tantrum. Demanding an epidural but refusing to have IV placed. Unable to monitor baby due to patient flailing around.

Sample Charting38 y.o. G4 P0 arrived via ambulance, transfer from St. Elsewhere. IV of Magnesium Sulfate running into peripheral L hand IV without infusion pump. Pt non-arousal with respirations of 10 and Sa02 of 92% . FHR tracing shows baseline of 90 with absent variability. Magnesium sulfate discontinued, 02 applied at 10 L via non-rebreather mask, patient repositioned to left side. L. Fabulous RN, charge nurse aware and at bedside. Dr.No Pain, anesthesia, and Dr. O.Bee, attending paged and requested to come stat. Orders received for stat administration of Calcium gluconate. Labs drawn and sent for stat Mag level.

Documentation Exercise

Patient is 16 year old G2 P1. Had an SAB 8 months ago at 16 weeks. She is now 26 weeks with PPROM 3 days ago. She is now having bleeding from her vagina and feels the need to have a bowel movement. You place the fetal monitor on her and find the following strip:

Documentation Exercise FHR Strip

Documentation Exercise

Let’s document in SBAR format the assessment of the strip and role play the conversation that you may have with the MD/provider.

Include what your recommendation/request is

1. The patient refused autopsy.

2. Note: patient here-recovering from forehead cut. Patient became very angry when given an enema by mistake.

3. Patient has chest pain if she lies on her left side for over a year.

4. The patient has been depressed since she began seeing me in 1993.

5. Discharge status: Alive but without permission

6. Healthy appearing decrepit 69-year old male, mentally alert but forgetful.

7. The patient had fowl discharge from the vagina

8. She is numb from her toes down

9. Foley draining urine the color of fine red wine

10. The patient had fowl discharge from the vagina

11. The skin was moist and dry.

12. Patient has cccasional, constant, infrequent headaches.

12. Patient was alert and unresponsive.

13. Rectal examination revealed a normal size thyroid.

14. She stated that she had been constipated for most of her life, until she got a divorce.

15. Examination of genitalia reveals that he is circus sized.

16. The lab test indicated abnormal lover function.

17. Skin: somewhat pale but present.

18. Patient has two teenage children, but no other abnormalities.

19.“I had a kiwi on my chest” (keloid)

20.Pt is in homodynamic compromise

21.“Pt denies any rectal breeding”

ReferencesAmerican Nurses Association (1996). Registered Professional Nurses and Unlicensed Assistive Personnel. Number NP-89 5M Washington, D.C.: ANA.

Fiesta, J (1993). Legal Aspects-Standards of care. Part I Nursing Management, 24(6), pp.22-24.

Fiesta, J (1993). Legal Aspects-Standards of care. Part III Nursing Management, 24(7), pp. 16-17).

Fiesta, J(1998). Failure To Communicate. Nursing Management, 29(1), 22-23.

Institute of Medicine (2000). To Err is Human, Washington, D.C.: National Academy Press.

Mahlmeister, L. (2000). The Process of Triage in Perinatal Settings: Clinical and Legal Issues. Journal of Perinatal and Neonatal Nursing, 13(4).

Mahlmeister, L (1996). Legal Issues in Nursing and Health Care. In B. Cherry and S. Jacobs (Eds). Contemporary Nursing Issues, Trends and Management (pp 237-281). St. Louise, MO: Mosby, Inc.

Raines, D. (2000). Making Mistakes. AWHONN Lifelines, 4(1), pp. 35-39