Documentation is Crucial to the Medico-Legal Process

By Kelly M. Pyrek

ONE OF THE MOST critical aspects of nursing--proper documentation--is a concept introduced to students in the earliest exposure to nursing principles and practice and bears great importance in the medico-legal process. "The medical record must be complete, accurate and authenticated before it can be introduced into evidence in most instances," write Deborah D'Andrea, BSN, BA, RN; Colleen D'Amico, BS, RN; and Shirley Cantwell Davis, BSN, RN, LNCC in "Legal Nurse Consulting: Principles and Practice, edited by Patricia W. Iyer, MSN, RN, LNCC (see review of this volume on page 6). Before legal nurse consultants can consider medical records to be ready for court, nurses must chart in a thorough, comprehensive, detail oriented fashion. That's the theory, but in reality, timely and thorough charting frequently is low on the priority list for rushed nurses.

"Time and the overload of work nurses must do daily are factors affecting charting," acknowledges Jackie W. Palmer, RN, CEN, president and CEO of The EdCare Group and a consultant and lecturer on medico-legal issues. "We always must bear in mind that caring for the patient is the most important thing. Documentation truly does become secondary to patient-care priorities."

Palmer agrees that the old adage, "If it wasn't documented, it didn't happen," is how the legal community views documentation, but says, "Healthcare professionals know that's not the case but that's the way it is looked at in court."

Nurses must balance real-world clinical imperatives with legal imperatives, and it's a fine line forensic nurses must walk daily. "In our litigious society, documentation protects patients' well-being and nurses' livelihoods," Palmer says, adding that ironically, the charting methods healthcare facilities often impose upon their nurses is an obstacle to that mission.

"One of the primary things that negatively impacts a nurse's charting is the very way in which facilities may require them to document patient care," Palmer adds. "A significant number of facilities utilize charting by exception, which is, from a legal viewpoint, the worst kind of charting because nurses never write down anything that's normal. It may be that what is normal is what is crucial to document," Palmer says. "When I am reviewing a chart for an attorney, I get the records months or years after an adverse clinical event and I have to decipher what happened. Information may have been documented on multiple pieces of paper within that chart that I have to cross reference to figure out the sequence of events at the time. In today's hospital setting, that documentation is not always done by the same individual. In specialty areas such as the ER and the ICU, most documentation is done by the nurse taking care of the patient. However, on some general-floor areas, the vast majority of the charting is done by non-nurses, the unlicensed assistive personnel who are the ones that take vital signs and get the patient up to walk, feed or bathe. The RN may chart based upon his or her own observations, speaking to the patient or the family, or it may be nothing more than a chart check, depending on the RN's workload. On a large post-surgical floor, there may be 40-plus patients, two RNs and all other staff are unlicensed. According to Palmer, "Documentation becomes a nearly impossible task and that's where you can get into trouble."

Palmer thinks that forensic training creates a heightened awareness of the medico-legal aspects of nurses' jobs and that forensic nurses may be better at charting, but not because of fear of litigation.

"I don't teach nurses to chart because they may go to court; I teach them to chart because if they don't write it down, how is the next person taking care of that patient going to know what you did?" Palmer explains. "In deposition, or on examination, an attorney may ask how the lack of charting a response to a breathing treatment in the ER days before the patient is discharged and subsequently dies at home is relevant to the outcome. The explanation is that nothing in nursing is done in a vacuum; it is a continuum of care. If it begins without adequate information, that is going to impact the rest of the patient's care. You can say, 'I did that,' but there's nothing to prove that you did if you don't writ it down."

It may be hard to believe, but Palmer says thorough charting is not something that every clinician espouses.

"I have been chastised by some of my peers and managers because they say I write too much," she says. "They are not going to make me chart any less than I do. If they have a problem with it, that's defensiveness on their part. They know they are not charting as much as I am and they're concerned that my amount of charting is going to make them look bad. That's not my problem, and I will do what I know is right. I teach my students to do it the right way, and after that, it is their choice."

Palmer says nurses may have the willingness to chart, but lack of knowledge about what to chart keeps them from thorough documentation.

"We are all taught specific lingo; we think we know what it means but I have seen a significant number of incorrect terms documented. If you don't know the meaning of a term, don't use it. Another hazard in documentation is abbreviations. I see a lot of nurses using non-standardized abbreviations, and even standardized terms don't mean the same thing from one facility to another. "SOB" is a classic -- does it stand for 'short of breath,' 'side of bed' or the other meaning. What if the SOB is SOB at the SOB?" Palmer asks with a laugh. "People tend to use shorthand that is not communicable across the continuum."

The need for clear and accurate charting becomes all the more important if a case goes to court.

Palmer emphasizes that a pivotal factor for healthcare providers named as defendants is the ability to go back years after the fact and know what they meant when they wrote the notes in the chart. "It can be 25 years after you cared for a patient that you have to look at your notes and figure out what you did. Attorneys hire consultants to look at nursing notes and they try to depose every named respondent if he or she can be found. If they can't be found, all you have is what they wrote. I grew up in an era of narrative charting as opposed to charting by exception and computerized checklist charting, and narrative charting gives you much more to go on."

Technology is revolutionizing the way nurses chart, but just how nurse-friendly the new computerized charting software is depends on how the system is set up, Palmer says. "The only way to make it nurse-friendly is to have nurses directly involved in setting up the system. If it's set up by non-nursing personnel, it can be a nightmare. If it is set up by nurses, for the most part, it is fairly nurse friendly but it seems there's always going to be a bug in the system somewhere. I have worked with several computerized charting systems so far and have found things I liked and disliked about all of them. Usually what I dislike is it didn't give me the opportunity to add something I thought was important. In that case there is supposed to be a place for the nurse to input narratives because a checkmark doesn't explain anything. I know that in many ways, checklists are a great boon; if I am doing a routine every two-hour check on a patient and they are no different than they were two hours ago, that's great. But if they are different, then there has to be some mechanism in place for me to chart these differences and anything else I believe is pertinent."

Sometimes the best technology and the most thorough charting can't prevent one of the biggest enemies to documentation --tampering.

"From a forensic standpoint, anything can be tampered with," Palmer says. "Imagine the scenario of a chart where a crucial passage, critical to the legal case, is charted in a completely different tone and aspect from the rest of the chart. Something like that is an instant red flag even to the least experienced litigator. Everybody forgets to write things down and everybody makes mistakes, but there are appropriate mechanisms in place for dealing with that. If you forget to chart something, you are able to return to the record and amend it but you need to indicate that you have gone back at a later date and amended it. You don't go back and erase anything. You write, 'Late entry,' including the date and time you are making an amendment to the original record. If you make a mistake, you cross through it with one line, initial it and write the correct entry. Writing in the wrong chart can happen to anybody. Nursing can be chaotic and a lot of charting is retroactive, unfortunately. You can't always chart everything extemporaneously, although that is the goal."

One of the most important forensic implications of charting is objectivity in describing injuries, taking care not to diagnose but to detail what is observed from a clinical standpoint.

"Everyone knows that a vast majority of what a nurse actually does at the bedside is of a diagnostic nature," Palmer acknowledges, emphasizing that this traditional modus operandi must take a back seat to objectivity. "I know when I look at a patient who has a fire-engine red throat, has a temperature of 103, can't swallow and I can see their tonsils, they probably have tonsillitis secondary to a bacterial infection. I function with that understanding; however, what I chart is not tonsillitis. It's the color of the throat, the temperature they have, the complaints they have stated -- not the interpretation of it. In forensic applications, that is particularly important when we look at wounds. I teach people how to identify bite marks but I constantly tell them you cannot write 'This is a bite mark.' What you have to write is exactly what you see: an area that has bruising that is so many centimeters by so many centimeters, located at this anatomical location and is this color. Now, if the patient gives you a statement that corroborates what you see, the appropriate forensic term is, 'is consistent with patient statement of.' If a patient has a bite mark and they tell me they were bitten in that spot, I must describe in detail what I see and then I can say, 'is consistent with patient statement he or she was bitten.' You have to be really specific and that is difficult for many healthcare providers because it involves a lot more writing than they are used to and they are pressed for time. When I teach, I ask my students, 'Who do you work for?' Your employer is the hospital but you are working for the patient."

Palmer says at times she has faced a significant amount of hostility when teaching documentation classes.

"I've taught documentation to non-nursing personnel such as EMTs and paramedics and they can be profoundly hostile to some of the things I tell them," she reports. "They are used to writing that the patient has a fractured left forearm. I tell them, 'I don't care if it is bent three different ways, you don't have an X-ray machine and you are not a doctor. You can't say it's broken.' That can make them very uncomfortable. What you have to chart is that you have a patient with an injury to L forearm that is angulated and displaced, even though everyone who looks at it knows it's broken. Medical diagnosis is the domain of the physician. I can remember on triage charts 20 years ago writing, 'rule out fracture.' That was accepted terminology at the time. Now we know better. Now I write, 'Patient has injury to forearm, secondary to fall from 20 feet; it is angulated to the left, tender to the touch, patient refuses to move arm and has no palpable pulse distally.' In doing so, I have documented the injury properly and facilitated the patient in receiving appropriate, timely treatment."

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