1. Early action is important. The defense of a claim begins when the facility recognizes that there is a potential for a lawsuit: a resident wanders out in a snow storm. One resident sexually assaults another. A third resident falls from a balcony.
2. Early investigation takes advantage of fresh memories and availability of documents, equipment and witnesses. The defense attorney should complete this investigation; the attorney can assert both attorney-client and work-product privileges. Investigations by the administrators often lead to unprotected and damaging revelations, which are easily available to plaintiffs.
3. Early involvement of the defense attorney should take place when the facility learns the family has retained an attorney.
4. The entire medical record will be needed. This includes any flow sheets and business records. After a legal nurse consultant organizes the medical record into sections with long term care chart dividers, protect the original. Make a copy and then number the pages.
5. Review the record to identify those individuals who provided care and made entries that relate to the allegations in the case.
6. Recognize that “If you did not chart it, you did not do it” fails to account for the realities of medical documentation. Medical records in any healthcare setting do not record each occurrence, only significant ones.
7. Medical records are recorded as care is being provided; certain entries may become more significant in hindsight. Memory and different clocks and watches influence all charting and can result in discrepancies and inaccuracies.
Modified from J. Scott Myers, Nuts and Bolts, Defending the Nursing Home, Lawyers and Judges conference.