Pat Iyer (left) and Barbara Levin after teaching at the Medical Surgical conference.

In organization after organization, physician resistance or acceptance of computerized medical records can make or break a system. In many medical records we review, physician progress notes are among the last documents to be automated, and contain the most difficult to read handwriting.

At Hackensack University Medical Center, a cancer center collects data about outcomes, to gauge the effectiveness of various treatments.

The use of computerized medical records provides more job security for employees and improved use of data for patients. Healthcare systems with robust electronic records may experience improved efficiency and reduced waste in care.

When there is better coordination of information among various providers, patients will have better access to their healthcare information, and their providers will be able to more readily share information. This should reduce medical errors and duplication of services.

Patricia Iyer is president of Med League. She began nursing at a time when all records were in paper form and has seen the changes in records over the years.

• Who first saw the patient? Usually a triage nurse will evaluate the patient before the patient is officially checked into the emergency department (ED).
• How did the patient arrive at the ED: by car, squad, or helicopter?
• When did the patient go to the ED in relation to the accident? Was the patient seen in the ED the same day or was the visit delayed?
• If the visit did not occur the same day as the accident, what was the reason provided for the patient’s delay in seeking medical care at the emergency department? Does the record say “Patient instructed to go to ED by his attorney?”
• What were the complaints of the patient? Were these the same complaints documented by the rescue squad at the accident scene?
• What were the injuries? If the patient was rear-ended, are low back or cervical spine symptoms documented? (These symptoms may not occur until twenty-four hours or more after the accident.) Were lacerations severe enough to be sutured? What x-rays were taken, and what did they show? If the patient complained of pain in a limb, was the correct limb x-rayed?
• Is there documentation of the use of a seat belt? Is the patient described as having been restrained at the time of the accident? Often this fact is changed in subsequent records. At times the patient who is unrestrained at the time of the accident may claim to have been using a seat belt when giving a history of the accident to a treating physician.
• Did the patient report a loss of consciousness at the accident scene? Is this consistent throughout subsequent records?
• Did the patient have chronic medical conditions? Look for seizure disorder and transient ischemic attacks (potential for raising questions of liability), arthritis (pre-existing condition), deafness (potential for raising questions on liability), hypoglycemia (drop in blood sugar which may result in lowered attention and may contribute to causing an accident), and glaucoma or cataracts (decreased vision may have contributed to the accident, particularly if it occurred after dark).
• What medications was the patient taking on a routine basis at the time of the accident? Look for sedatives and narcotics, which may cause drowsiness. Use of narcotics or other pain relievers raise questions about pre-existing conditions. Use of eye drops raise issues concerning visual acuity. A history of treatment with antidepressants may be significant if the patient claims to have developed depression as a result of the accident (as a new condition instead of acknowledging the existence of a pre-existing condition).

Source: Analyzing Medical Records, Marguerite Barbacci, BSN, RNC, LNCC and Patricia Iyer, MSN, RN, LNCC in Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, 2010, Lawyers and Judges Publishing

The components of a physician practice chart are usually more limited than hospital or nursing home records. They may include
1. A face sheet which contains patient demographics such as name, age, gender, insurance coverage, and possibly working diagnoses
2. A cover sheet which tracks medications the patient is on (this page may also be found in other areas of the chart). If no centralized tracking of the patient’s medications is found on a practice or clinic record, the chart should be carefully reviewed for possible medication error.
3. Progress notes, which may include notations by physicians, nurses, and other clinical professionals who work in the practice. These notes need to be dated and signed just like those in hospital charts, unless there is only one person who documents in this area. If there is only one person using the progress notes, then this person’s notes must be dated.
4. Laboratory and other test results. Test results should be initialed by the physician or nurse practitioner to note that they have been reviewed. If no notation indicating review is found, the result may have been filed in the chart without the physician seeing it.
5. Reports from consultants, copies of office notes from visits to other providers; these reports should be handled in the same way as test results
6. Miscellaneous – insurance cards, return to work notes, billing

Incomplete documentation can dramatically affect a malpractice case. In the ideal world all pertinent observations and interventions are recorded. But is “If you didn’t chart it you didn’t do it” true? For a variety of reasons, medical records may be incomplete. Emergency situations, such as cardiac arrests, often result in gaps in documentation as patient needs take priority. Ideally the nurse tries to record detailed notes after the emergency is over, but this does not always happen because the nurse must direct attention to the other patients who took a back seat to the crisis. Sketchy documentation complicates the defense of a case and provides the plaintiff’s attorney with an opportunity to advance theories of liability.

Plaintiff’s attorneys may use the phrase, “If you didn’t chart it, you didn’t do it” to convince the jury that essential care was not given. Defense attorneys sometimes attempt to preempt the anticipated attack on the nurse’s credibility or documentation. This can be brought up on direct examination of the nurse during trial by having the nurse testify about the impossibility of recording every detail or observation of the patient. Another useful technique is to have the nurse testify about the nurse’s usual practice which may or may not be recorded in the medical record.

Missing documentation coupled with a poor outcome complicates the defense of cases no matter what strategy is employed, and it provides the plaintiff with an opportunity to successfully argue that care was not rendered. In the case below, the nurses could not prove they contacted the physician, if they did.

The plaintiff, age sixty-three, suffered a back injury and could not to return to work as a nurse. She decided to have an anterior approach lumbar fusion of the spine. This was to include surgery to the spine from the front of the body and then a day or two later, surgery from the back. For the anterior approach the plaintiff’s abdomen was opened and her internal organs were moved in order to get to the spine. After surgery the plaintiff had fluctuating blood pressure and no pulse in the left leg. The nurses noted the lack of pulse in the leg but did nothing about it.

The next morning, when Dr. Brown arrived to perform the second part of the surgery, he discovered her problems and had her rushed for a CT scan which showed internal bleeding in her abdomen and a block¬age of the artery which supplies blood to the left leg. The plaintiff was transferred to another hospital by helicopter, but the surgeons there were unsuccessful in salvaging the leg and an above-knee amputation was performed. The plaintiff had been unaware of the problem with the leg overnight due to being heavily medicated. The plaintiff’s abdomen took four years to heal because the surgical incision wouldn’t fully close due to the swelling of her organs and the internal bleeding. The plaintiff also had infections and required repeated surgeries to repair the damage to her abdomen. The matter settled for $5.25 million. 1.

Good documentation is consistent, concise, chronological, continuing, and reasonable complete. 2.

Cites:
1. Laska, L. (Ed), “Woman suffers lack of pulse in leg after spinal surgery”, Medical Malpractice Verdicts, Settlements, and Experts, January 2010, page 37
2. Legal issues in the care of pressure ulcer patients: Key concepts for healthcare providers, International Expert Wound Care Advisory Panel, 6/22/2009

This blog post was modified from Iyer and Koob, “Nursing Documentation”, in Iyer, Levin, Ashton and Powell, Nursing Malpractice, 4th edition, 2011, available here.

2. Screen cases: Careful scrutiny of the medical record can eliminate many potential suits and lead to early settlements of claims that have merit. Nursing documentation often paints a vivid picture for both the plaintiff and defense attorneys, with each side using the record to draw conclusions about the events of the case. Expert witnesses will rely on the charting to form opinions about adherence to or deviations from the standard of care. It is therefore essential that the attorney have an intimate understanding of the medical record and how nurses document.

3. Treatment and damages: Nursing documentation provides essential information that describes a patient’s injuries or health status, major problems, effectiveness of treatment, and cooperation or lack of compliance with treatment. When correlated with other parts of the medical record, nursing documentation usually provides a complete picture of the patient’s condition. Discrepancies, if any, between the nursing documentation and that of other healthcare providers, can be crucial in a particular case. Nurses notes pinpoint delays in care and improvement or worsening of symptoms. Timing may be a critical factor in delivery of care. Physicians rarely time their notes, nurses usually do.

4. Legibility: Nursing documentation is often the most legible part of the chart and contains information that must be considered when evaluating a personal injury, malpractice, or product liability case. Comments that patients make about their injuries or the details of a personal injury case are often recorded verbatim by nurses. For this reason the attorney should request a complete medical record in order to gather facts that bear on the patient’s injuries.

Examples of gold

• that prior back injury from another car accident the plaintiff did not describe to his attorney,
• the note written in the recovery room about the time the burn was first seen on the patient’s leg,
• the emergency room note that the patient had AOB (alcohol on breath),
• the nursing note that an anonymous caller reported the father of a child with suspected shaken baby injuries had a history of hitting his wife,
• the note in the records about a loving son: He stated “I’ll be honest with you, I wouldn’t care if today she fell and split her head open. Then she’d have to go to the hospital and they could take care of her so I can do the things that I have to deal with.” (Thanks to Tom Conlon Esq. for this note) and
• the medication administration record that showed the patient received Morphine before the drug screen was done.

Yes, these are all true examples. Don’t be surprised by information in the medical records that could harm your client. Can’t read or are too busy to read the nurses’ notes? Retaining Med League’s legal nurse consultants to do a medical record summary or chronology can uncover important information that affects your case.

This blog post is modified from Nursing Documentation, a chapter written by Pat Iyer and Sharon Koob, in the fourth edition of Nursing Malpractice. See our webstore for details.

Don’t let a lack of clinical experience in a specific field to limit your legal nurse practice. Instead, educate yourself about the unfamiliar specialty. When I got my first long term care (LTC) case, I was confused why the same tasks were written on three or four separate documents, why the nurses did not document a narrative note every shift and how the attending physician could “get away with” not seeing the patient for a month! Once I educated myself on long term care, I understood better the documentation standard. I then had to wade through all the documents. I came to rely upon a set of documents that provide a good starting point for LTC case analysis: Minimum Data Set (MDS), Resident Assessment Protocols (RAPs) and the Care Plan.

Below is a brief primer on these documents. For an in-depth discussion of these documents and hands-on LTC case analysis, join us for a webinar series in May 2011.

History

In 1987, Congress passed the Omnibus Budget Reconciliation Act (OBRA). This legislation set specific standards for all Medicare certified skilled nursing facilities including a detailed assessment of the patient that was linked to that their plan of care. What came out of this legislation was the Resident Assessment Instrument (RAI). Don’t let all the acronyms confuse you. The RAI is meant to standardize communication regarding the person’s medical problems and conditions both within the LTC facility and to outside healthcare providers. The RAI enables the nursing home to track changes in a patient’s status and evaluate their individualized plan of care. So, you can see how the RAI is a great place to start a medicolegal analysis.

Specific Documents of the RAI

• Minimum Data Set (MDS) provides a detailed assessment of the patient that is linked to that person’s individualized plan of care. The MDS includes information on the person’s cognitive and functional abilities along with their physical condition. The MDS is a goldmine for a legal nurse consultant (LNC). One of the best things about the MDS is that is exactly the same for every facility in the country. Of course, there is a twist to this.  After years of revision work, a new version of MDS – MDS 3.0 – was rolled out in late 2010 with an expanded section on skin conditions. It is critical to analyze cases according to the SOC that were in place at the time of the alleged negligence. If the events took place in 2010, the new MDS 3.0 would not be applicable.

• Resident Assessment Protocols (RAP) is the next step in the RAI. Based on the MDS, certain protocols are triggered. Each protocol has specific guidelines for required assessment regarding the patient’s status. Included in these guidelines are risk factors that prompt care planning. There are eighteen different RAP categories, called “problem areas”. If a RAP is triggered, documentation must be provided to support the facility’s staff decision whether or not to include it in the care plan. Documentation may appear anywhere in the clinical record. A RAP summary is part of the MDS. It is a checklist and includes which RAPs are triggered, location and date of assessment documentation and if the RAP is included in the care plan. Again, this form is consistent among all facilities in the U.S.

• Care Plan – There is nothing new or different about a LTC care plan. Nurses in all specialty areas assess, plan, implement and evaluate based on the individual patient’s needs. The key in long term care is to review the care plan to ensure it is consistent with the MDS and RAP. As with all case analysis, the care plan is reviewed to ensure the nursing staff identified issues and appropriately provided interventions and re- evaluated those interventions with changes in the resident’s condition.

Practice Pearls

• Educate yourself if this is a new area of nursing for you. Utilize resources such as ARHQ Clinical Practice Guidelines and RAI User’s Manual. Be careful to use resources during the time for which the alleged negligence took place.
• Compare the MDS to the RAPs and the care plan. Is the information consistent? Then compare the clinician progress notes including therapy notes. Note relevant inconsistencies in your analysis.
• Were changes in function or cognitive status identified appropriately? Was the plan of care adjusted based on the change in status? Where is the evidence to support or refute the standard of care being met? Include this discussion in your analysis.

Learn how to WOW your clients and check out this information about an all new webinar on how to polish your writing skills and LTC case analysis. See www.PatIyer.com for details. Early bird discount ends April 17.

But Missouri hospitals don’t want people to know when and where these mistakes happen – and no law requires them to tell. They say patients are safer when hospitals can share that information among themselves without anyone pointing fingers.

“Focusing on systems of blame and punishment rather than analysis and improvement are counterproductive to improving patient safety,” said Michael R. Dunaway, a vice president in the St. Louis Metropolitan Hospital Council, in a letter to the Post-Dispatch.

Advocates for transparency, though, question whether patients are safer. “People want public accountability,” said Louise Probst, director of the St. Louis Area Business Health Coalition. “I don’t know what’s holding us back.”

Missouri hospitals have opposed legislation that would release information about serious errors. The state is among a minority of states that don’t track errors. Read more.

This new study reviewed 2,341 patients’ records from stays at 10 North Carolina hospitals from 2002 to 2007. The reviewers found that 25 harms per 100 admissions had occurred, and that 63% of these harms were preventable. Harms that were detected were a consequence of procedures (186), medications (162), nosocomial infections (87), other therapies (59), diagnostic evaluations (7), and falls (5), among other causes. The large majority of identified harms were classified as category E or temporary harm (144) or category F or an initial or prolonged hospitalization (163) harms. Of the identified preventable harms, 13 caused permanent harm (category G), 35 were life-threatening (category H), and 9 caused or contributed to a patient’s death (category I).

The authors concluded harm to patients resulting from medical care was common in North Carolina, and the rate of harm did not appear to decrease significantly during a 6-year period ending in December 2007, despite substantial national attention and allocation of resources to improve the safety of care. Since North Carolina has been a leader in efforts to improve safety, a lack of improvement in this state suggests that further improvement is also needed at the national level.

What is holding us back from making patient care safer? The authors pinpoint these factors:
Despite substantial resource allocation and efforts to draw attention to the patient-safety epidemic on the part of government agencies, health care regulators, and private organizations, the penetration of evidence-based safety practices has been quite modest. For example, only 1.5% of hospitals in the United States have implemented a comprehensive system of electronic medical records, and only 9.1% have even basic electronic record keeping in place; only 17% have computerized provider order entry. Physicians-in-training and nurses alike routinely work hours in excess of those proven to be safe. Compliance with even simple interventions such as hand washing is poor in many centers.

If North Carolina, which has aggressively pushed patient safety, has not improved in 6 years, what is going on in the rest of the country?

computerized medical records aid litigation

Many facilities are also putting their policy and procedure manual “on line”. The unit’s policies and procedures are thus readily available instead of being contained in huge three ring binders. Thus it becomes easier to use the policies and procedures to follow the standard of care and to document accordingly. A work list of activities that need to be completed for a patient can be created in some electronic medical records systems. For example, the treatments and medications that are due to be administered over the course of a shift may be printed out for a nurse.

Computerization of documentation provides some benefits for those involved in litigation. When asking a facility for a policy/procedure saved in an electronic form, the attorney may need to identify the key words of the document. For example, the facility’s employee might be able to insert the word “falls” into a search box to retrieve all relevant electronic policies.

• One of the most obvious benefits is the creation of legible records. Computer printed records are completely legible, therefore eliminating the confusion caused by guessing at the meaning of handwritten words.
• The identities of the healthcare providers are easy to determine, as each entry is followed by either initials or a full name and status MD, RN, LPN and so on). If the entry is followed by initials, somewhere else in the document the person’s full name will appear.
• The programs which incorporate the facility’s standards of care prompt the healthcare provider to enter the essential information. For example, an admission assessment would include information that would identify the patient’s risk for skin breakdown or for a fall. This type of prompting focuses the nurse’s attention on key clinical issues and reminds the nurse to collect and enter the data that would fulfill the standard of care.