Charting with a jury in mind

The adage “If it’s not documented, it’s not done” is routinely taught to nurses, physicians and other aspiring clinicians. That sound advice can make the difference in the outcome in negligence or wrongful death causes of actions, State disciplinary board or licensing actions, Centers for Medicare & Medicaid Services (CMS) enforcement actions and/or federal False Claims Act prosecutions. Because patient/resident medical records are legal documents that are routinely admitted as evidence in court proceedings, accuracy and documentation protocols are vital to maintaining complete records and managing risk.

As an experienced litigator, previously for CMS and currently for healthcare organizations, I know that virtually every case ultimately turns on the documentation that either exists or should have existed. Apart from the fact that accurate and thorough charting provides for quality care, it also offers a shield to protect practitioners from allegations of negligence or other forms of wrongful actions or omissions.

LIABILITY

Clear, accurate and complete documentation in a patient’s/resident’s medical record is essential for providing safe, efficient and quality care. Both quality improvement and risk management are enhanced by proper documentation. Additionally, documentation—or the lack of proper documentation—most likely will play a critical role in legal proceedings initiated by residents, their estates or state and federal governmental agencies.

The following is an illustration of why appropriate documentation makes a difference:

A nurse may add to a chart: “Mr. Smith complained of chest pain at 10:30 a.m.” But the preferred clinical note would be: “10:30 a.m.: Mr. Smith complained of dull chest pain that began about 10 minutes ago. Patient denies pain in arms, jaw or elsewhere. Vital signs taken, B/P: 120/64. RR: 18 and unlabored, heart rate, 72, regular. Dr. Jones notified at 10:42 am. No new orders given. Will monitor and continue to report any changes to nursing supervisor.”  

If the hypothetical Mr. Smith had died soon after the first note above and a negligence case went to trial, how could the nurse answer questions about the incident two or three years later at a deposition or cross-examination? Attorneys will surely as: “What did you do after Mr. Smith complained of chest pain? Who, if anyone, did you contact? At what time? What were Mr. Smith’s vital signs?” And, the coup de grace from an unfriendly attorney at an even unfriendlier deposition: “Isn’t it true that the standards of documentation for nurses require a more detailed clinical note than what you wrote?”

The take-away from the above is that a clinician should never chart “chest pain” without also documenting what was done about it, who was contacted and what interventions were implemented, including the times of and results of those interventions. More importantly than the legal consequences, adequate charting is essential for providing quality patient/resident care.

WHERE DOCUMENTATION PLAYS A ROLE

Patient/resident records do more than communicate pertinent clinical information. They are used to determine regulatory compliance and make reimbursement determinations. It is important to realize that, although there are different legal venues where clinical documentation will play a role, those venues are not mutually exclusive. For example, if a nurse falsely charted that a medication was administered, even though he or she was aware that it was not given, then that nurse could be subject to employment termination and a disciplinary proceeding by the state board of nursing as well as be named in a civil suit by the resident or family estate if the resident suffered harm as a consequence. Although CMS could not impose an enforcement action against the nurse, it would cite the nurse’s employer, the facility, with a deficiency and could impose an enforcement action against the facility. Further, both the nurse and the facility theoretically could be subjected to federal prosecution for a civil and criminal violation of the False Claims Act based on submitting a claim for reimbursement for a service that was not provided. Moreover, it is a federal crime to falsify a medical record.

Both federal and state laws mandate minimum requirements regarding clinical records. Under the federal regulations governing nursing facilities, “[T]he facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible and systematically organized” (42 C.F.R. § 483.75(l)). Although state laws generally contain the same requirements, practitioners are advised to determine whether additional requirements exist in their jurisdiction.

DOS AND DON’TS OF CHARTING

Do:

• Chart the facts accurately, completely and concisely.
• Document in a timely way. If a late entry cannot be avoided, then it should be labeled as a “late entry.”  
• Use standard abbreviations only. Nonstandard abbreviations or “shorthand” can be easily misinterpreted.
• Document relevant telephone conversations.
• Chart pertinent resident quotes.
• Document resident nonadherence. Explain why the patient refused a treatment or medication, what alternatives were offered and how the risks of nonadherence were explained to the resident.
• Document resident/family/caregiver teaching.
• Chart discharge planning and the level of understanding by the resident and/or family.

Don't:

• Document for anyone else or permit anyone to document for you.
• Use correction fluid. If you make a mistake, then draw a line through it, note “mistaken entry” and date and initial the entry.
• Leave blank lines between entries.
• Rely on memory.
• Make vague entries such as “John is having a good day,” “Mr. Smith appears to be…” or “resident is doing well.”
• Make ad hominem attacks or criticize others (including co-workers, patients or family members) using remarks like “the night shift apparently never checked the resident’s pulse oximetry.”
• Ever falsify an entry in a medical record; it’s a federal offense.
• Destroy any portion of a medical record.

INCIDENT REPORTS

Although incident reports are not part of a resident’s medical record, they are important documents that serve a useful purpose. It is not necessary to refer to an incident report in a person’s medical record, although the important facts should be documented there. Remember that an incident report is merely a factual recitation of what occurred. Assumptions, judgments or speculations as to what might have caused a particular incident are inappropriate. If it is known why or how a patient fell, then that should be included. Guessing at the reason, however, is counterproductive both in terms of patient/resident care and potential liability. Determining the cause of an incident and making recommendations to prevent similar incidents from occurring is best left to the quality assurance or quality assurance and performance improvement (QAPI) committee and the risk management department.

SBAR

It is important to know and understand a facility’s particular charting policies. For example, some facilities have adopted the SBAR (situation, background, assessment, recommendation) format of charting to prevent avoidable hospitalizations. Nurses can use SBAR to communicate and share relevant information with other members of a patient’s team using a standardized approach. The SBAR concept systematically addresses new signs and symptoms and other clinical changes in condition. The Joint Commission considers SBAR as a best practice for standardized communication because of its ability to promote quality care and safety. Generally, the nursing staff would complete the SBAR form before calling a physician, nurse practitioner or physician assistant. Whether or not SBAR is used, adherence to a facility’s particular policies regarding charting is part of the job and should be followed.

This article scratches the surface of the principles of documentation. Many excellent guidelines are available from professional organizations, such as the American Nurses Association. Clear, complete and accurate nursing documentation communicates important information to others, allows for continuity of quality care, facilitates QAPI initiatives and bolsters risk management. An unintended consequence or secondary benefit is that it can provide a valid defense in legal proceedings.

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.