Legal Eagles of Hospital Nursing2017

Sheila L. Hoehn, RN, MAN, BC, LNCDirector of Critical Care and Clinical Development

Board Certified Pain Management NurseLegal Nurse Consultant

Cuyuna Regional Medical Center

Objectives

• Identify benchmarks of legal responsibility for nursing practice. • Recognize organizational importance of policy and procedure

from legal, accreditation, and regulatory perspectives.• Evaluate nursing documentation to reflect standards of

nursing practice. • Review multiple case studies and legal outcomes of

healthcare in all areas of practice.

Staff Nursing

• Staff nurses are pivotal to the operations of a healthcare facility and without them, the organization would have to cease operations.

• Nursing practice: stressful and can create many legal challenges with it’s delivery.

• At times… Do you feel like you are navigating a legal minefield?

• Preparation and knowledge: Reduces legal risk and increases the rewards of your career.

Brothers,2015

Policy and Procedure (P&P) Importance

• One of the cardinal principles of legally defensible documentation is strict adherence to organizational policy and procedure (P&P).• Know the State of Minnesota’s and your facility’s P&P &

guidelines in which you practice!• CMS recommends CAH P & P be reviewed annually!

•  Failure to follow P&P is among the most frequent allegations against nurses in lawsuits. • Know key policies and where to locate

the rest.Croke, 2003 CMS, 2017

Make Documentation Your Ally

• Organizes thoughts• Identifies problem areas and evaluates plan of care• Communication with team members• Aids and guides nursing actions & assessment• Ensures reimbursement $$$$$

• Affords legal protection to you and your employer• Used in research, supports decision analysis and drives

quality improvement• Reduces risk for legal and professional exposure.

Lippincott, Williams & Wilkins, 2008

P & P

• Recognize that in any lawsuit, accreditation survey, or disciplinary action, organizational P&P will be upheld as the standard against which your actions are judged.**

• All organizational P&P are important from legal, accreditation, and regulatory perspectives.

• Documentation validates or proves your compliance with P&P’s.

The Patient's Medical Record “If you think of the medical record first

and foremost as clinical communication and that you consistently document carefully, you need not panic if the court subpoenas it.”

Lippincott, Williams &Wilkins, 2008

However, if you think only of legal implications or document to protect yourself, your part of the medical record will sound self-serving and defensive.

Such documentation tends to have a negative impact on a judge and a jury”

Lippincott, Williams &Wilkins, 2008

Common Charting Errors to Avoid

• Failing to record:• Pertinent health or drug information• Nursing actions• Medications have been given• Discontinued Medications• Drug reactions or changes in patient condition• Complete patient histories and records

• Recording in the wrong patient’s medical record

Did you know?

Judges, juries, accreditation surveyors, supervisors and other interested parties take the position that :

“If it wasn’t documented, it wasn’t done.”

Lippincott, Williams &Wilkins, 2008

Not Documented, Not Done

• Be specific; avoid general terms/vague expressions.• Acknowledge progress notes of the previous shift.• Document complete assessment data, even when not

related to the chief complaint you are addressing. • (i.e. If the patient complains of constipation while you

changing a dressing on a leg ulcer, you will certainly assess the patient with respect to constipation).

Lippincott, Williams &Wilkins, 2008

• Document assessments and patient status following any intervention. • Always document patient response to medications and

interventions, especially any unexpected response.

• Complete reassessments!

• Failure to document each observation suggests that you neglected the patient.

• The goal of documenting with legal standards means taking the standard of nursing as we know them and creating a document demonstrating that we did what is within that scope.

• Accurate timelines are key to that delivery!

Documentation Standards

Healthcare organizations establish documentation policies based upon standards set by professional organizations:

• American Nurses Association (ANA)• Nursing Specialty Organizations• Center for Medicare and Medicaid (CMS)• National Quality Forum (NQF)• The Joint Commission (TJC) National Patient Safety Goals (NPSG)

-- 2016: Med Reconciliation• State Nurse Practice Acts• Federal, State, and Private Insurance Reimbursement Guidelines

All aspects of care standards mandate must be documented as evidence that care was provided.

Documentation Standards/ Requirements Emphasize:

Ongoing assessment• Patient teaching, including the patient’s response to teaching and

indication that the patient has learned.• Response to all medications, treatments, and interventions.• Relevant statements made by the patient.

*CRMC’s P&P are the standards against which your practice is judged in a court of law or in any disciplinary proceeding.

 

Documentation must bear witness to your actions in all phases of the nursing process:

• Assessment• Analysis• Planning• Intervention• Evaluation

• ANA Standards of Practice and TJC Patient Care Standards emphasize the importance of documenting activities and findings in all phases of the nursing process.

• Research indicates: Intervention documentation and patient response is a weak link in documentation of nursing process.

• Complete documentation of initial and reassessments:• Respiratory, circulatory, and neurological systems, wound care, fluid status and

pain levels/treatments.

• If you fail to record your findings –normal and otherwise – it may be alleged that you did not assess and monitor the patient.

• If a flow sheet calls for assessments that do not apply to your patient, indicate “Not Applicable.”

• Use flow sheets according to policy. **

DO NOT LEAVE BLANK SPACES if at all possible.  Paans, et al., 2010

Documentation Characteristics

High quality documentation is:• Accessible• Accurate, relevant, consistent• Clear, concise, complete• Thoughtful

• Material protected by Copyright• Timely, sequential• Reflective of the nursing process• Retrievable on a permanent basis

ANA, 2010b

Documentation Determines= $$$$$  “Nurses need to be prudent regarding their

documentation of the assessment of their patients’ clinical status”.

“More than ever, nursing documentation will be

a key driver in the amount of reimbursement that’s provided to their organization.”

White, 2008, p. 42

Documentation Expectations when Notifying a Provider :

• Providers full name & the exact time of notification• Specific results, symptoms, or other assessment data reported.• Provider’s response, using exact words if possible.• Any orders which provider gives.

If no orders given, note this - especially if you anticipated an order.

• i.e. “Dr. Sara Jones informed of oral temperature of 104 F. No orders received.” Include the commitment for necessary follow-up by provider, such as, “I will

visit patient at 0600.”

• Include symptoms and parameters (i.e. changes in VS, LOC or pain) that provider defines as indicators to use in deciding to call the provider back again.

• It’s essential that you document your own actions to assist with the patient-- in addition to documenting all contact with the provider.

• If a provider fails to respond or fails to order an intervention and thereby creates a risk for the patient, pursue the chain-of-command and notify your direct supervisor.

• Document all of your actions.

Charting Tips

Quality Nursing Documentation 

Patient Centered: • Reflects concerns, responses and detailed assessments.

• Does not simply list nursing tasks accomplished.• Reflects actual workflow of nurses.

• Includes education, psychological support, and care provision reported among nurses orally, (but often is never documented).

• Describes nurses objective clinical judgment.

• Notes findings, reports data and reaches conclusions• Does NOT report “appears” or “seems-like,” conclusions.

• Proceeds in a logical and sequential manner, especially when evaluating a problem.

• Is recorded concurrently with events.• Records variances in findings and in care. • Does not duplicate information to be found in other parts

of the record.• Fulfills all legal requirements.

Charting by Exception (CBE)

• Implies all standards have been met with a normal or expected response unless otherwise documented. • Well-defined guidelines/ standards of care must be in place.

• When in doubt about whether an observation should be documented, error on the side of caution: Document.

• CBE system is used when abnormal or significant findings to the norms are only recorded.

Helm, 2003

Charting by Exception

Your standard should be: •Ask yourself: Does the document tell the full story of the patients condition and of your professional assessment and care?• Be certain to document observations in changes of patient condition, notification of provider, and follow-up monitoring.

•DID YOU KNOW?? Inadequate observation is among the leading causes of lawsuits against nurses!

www.NSO.com

Unprofessional Documentation

Venting Frustrations in the Medical Record• Use the proper forum to express concerns about working

conditions, poor rapport with team members, and other issues of concern with care.

• The patient’s record is not that forum.

• It is critical to report issues to proper individuals according to procedure, and follow up.

• If a record containing such comments was brought into evidence in a suit, the documented ‘system’ problems would make the organization appear to be at fault.

• *Inappropriate comments in a medical record will also create an avenue for complaints by the organization against the nurse.

• The organization can claim the inappropriate documentation led to the filing of the claim and/or the inability to defend against claim.

Late Entries

• When too busy to chart or when remembering further information after your shift ends, you will need to make a late entry. • Document the time of your entry and within the body

of the note indicate the time of the occurrence to which you are referring.

• Entering pertinent information is better done late than never. **Shorter lengths of stay on inpatient units may increase the likelihood of the need for late entries.

• The safest, most legally defensible practice is to document at frequent intervals, and particularly after any emergency, unusual, or complicated events.

• When you absolutely cannot do so, make notes and document carefully into the medical record at your earliest opportunity.

Risky Words in Documentation

Words to avoid that reflect negativity:• Accidentally• Apparently• Appears• Assume• Confusing• Could be• May be• Miscalculated• Mistake• Names of others • Somehow• Unintentionally

Evidence of MalpracticeEvidence presented in malpractice cases frequently

focuses on documentation of:• Timely vital signs• Reporting changes in patient condition• Medications given• Patient responses to medication, treatments

& interventions• Discharge teaching

Beware of relying upon electronic checkboxes to document the full provision of patient care.

Document all information that indicates a change in patient status and response to treatment.

Lippincott, Williams & Wilkins, 2008

Documentation and the Law • Malpractice suits against nurses have increased during the

past decade. • Between 2000 and 2009: 1/100 malpractice payments

resulted from claims against nurses.

• Although most cases are settled without trial, documentation is carefully examined when determining the amount of a settlement.

• Failure to document: is among the six common categories of malpractice claims against nurses

~Defamation: Slander and Libel ~Health Insurance Portability and Accountability Act

(HIPAA)

Reising, 2012Lippincott, Williams, & Wilkins, 2008

 How Does Your Documentation Testify?

Documentation is evidence that you:• Provided a safe environment & protected patient from avoidable injury.• Executed orders correctly and promptly.• Administered medications correctly.• Observed patient response to medications.• Managed patient pain effectively.• Took proper safety precautions with any restrained patient.• Prevented an infection.• Reported facts of improper care from other providers• Used equipment properly & assured it was in proper working order.• Made prompt, accurate entries in a patient’s medical record.• Corrected any error in your documentation according to policy.• Followed hospital policy and procedure.• Made any late entries as soon as possible and in a clear fashion.

Legal Issues: Best Practices for Nurses

Standard of Care

• A set of minimal competencies a nurse must possess and practice to provide acceptable care.

• In legal terms… “Reasonably prudent nurse” is often benchmarked to define the standard of care.

The law looks at a nurses practice this way:Is the performance of the act within the accepted “standard of care” which would be provided in similar circumstances by reasonable and prudent nurses who have similar training and experience?

Negligence

• Under the doctrine called ‘Vicarious liability’ or ‘respondeat superior’, employers are automatically liable for the acts of its employees.

• If an employee acts negligent, the employer will vicariously or automatically be held accountable for that employee’s negligence.

• If the nurse is negligent, under the doctrine, the hospital would also be negligent.

• Basis of needed competency assurances and annual assessments thereof are then standardized.

Feutz-Harter, 2012

Professional Liability Insurance

• Employer Coverage: Employers can deny coverage for actions performed outside the scope of the job description or most notably, outside the employment setting.• Good Samaritan acts: Carry Absolute immunity

against claims or lawsuits.

Feutz-Harter, 2012

• A frequent argument heard:

‘Having a personal insurance policy invites more lawsuits or larger judgments’

• Not True: Reality is that nurses are sued without the knowledge of the presence or absence of insurance.

• If a suit is filed against a nurse because of attorney awareness of a liability insurance being available, the attorney is subject to malicious prosecution action by the nurse.

Feutz-Harter, 2012

? Should Nurses Purchase Additional Liability Insurance?

It is a personal decision: Consider these factors:•Professional activity involvement outside your employment setting•Personal assets/ current and future inheritances•Advanced nurse practice activities you are engaged in •Amount of coverage provided by your employer•Type of policy, limits/extent of coverage when no longer employed •Financial viability of current employer •Potential for lawsuit in the nursing practice area you are in and the magnitude of awards rendered in that specialized area•What is personally reassuring to you?

Feutz-Harter, 2012

Most Vulnerable Nursing Areas

• Anesthesia• Midwifery• OB• Advanced Practice Nurses• Monitoring capacity positions (fetal heart, telemetry, etc.)• Medication Administration

Allnurses.com, 2017

Scenario

• Betty was admitted to ICU after and overdose/suicide attempt. Goal: Stabilize while arrangements for transfer to a psychiatric facility.

• Patient became increasingly paranoid and delusional. To help in calming her, the nursing staff discussed and decided against restraints, fearing it would escalate her agitation.

• 1:1 nursing was implemented and an RN remained in the room. • Betty abruptly jumped out of bed, knocked the nurse down, fought

past two other nurses and ran off the ICU.• Once off the unit, she knocked out a third story window and

jumped, fracturing many bones and sustaining multiple organ damage.

•Did the nurses practice within their established Standards of Care?•Do you believe that he nurses were liable for Betty’s injuries?

The family sued the hospital… What do you think?

1. ICU nurses were NOT found liable for the injuries 2. The nurses realized Betty was at threat to herself and acted reasonably under the circumstances.3. Nursing actions were fully consistent with basic professional Standards of Practice for nursing in an acute care facility.4. According to the court, ICU did not have nor were they expected to have, specialized psychiatric nursing skills, and they wouldn’t be judged as though they possessed such competencies.

Bottom Line

• Nurses will be held accountable within their specialty area and will be expected to practice within the Standard of Care(SOC) in that specialty.

• You won’t be expected to possess knowledge, expertise or skills outside your area of practice!

Brothers, 2015

• Nursing: Defined by a set of specialized skills, knowledge and abilities.• The law requires you to practice within these established professional

standards.• Practicing outside of established professional standards of care– you

invite a charge of liability for professional malpractice. • Remember: Courts generally rule against nurses who violate

employers policies and procedures. Think of all the duties you complete during your shift… Are you certain that you

are following the polices and procedures for your facility when you under take those duties???

Brothers, 2015

Performance and Competencies

Prima Facie: “at first site” and “look no further” •Up to date training is a must!•Negligence and malpractice may exist simply because nursing training is not current.•If nursing staff is not utilizing current best practice and needed certifications are not complete, Prima Facie evidence means you don’t have to look any further.A nurse with expired and out of date training is one who is practicing negligent nursing.

• Out of date competencies and skills: Reflect a facility that does not value their practice delivery or their provision of care.

Nurse Managers: Did you Know?

• Nurses aren’t the only one at fault for deficient competencies and certifications!

• Nurse managers, who are responsible for completing performance evaluations and correcting competency deficiencies are also responsible for adverse patient outcomes if the competency issue was never appropriately addressed.

Brothers, 2015

Hospital Legal Case Studies

“Time Heals Nothing, it Merely Rearranges our Memory” - Gary Numan

How well do you recall the details of care you provided to a patient 2 years ago today?

Take a minute to remember where you were working at that time………

 Suppose your assignment included a patient who arrived in the ED was diagnosed and needed to be admitted for a routine surgical procedure. He was alert, oriented and independent of self-care.

• You cared for him only briefly, prepped him and provided pre-operative teaching.

• He went to the operating room, to PACU, then to ICU where he suddenly died.

• Now, 2 years later in court, you must recall the details of the preop care you provided in the ED (while you were also very busy with other patients).

• The only reference you will have to assist you is your documentation of the events of that evening.• If documentation is vague, judgmental, inaccurate,

incomplete or untimely, it will not assist you in substantiating that you met Standards of Care.

• In fact, your documentation may be the primary witness for the plaintiff.

• Litigation that will call upon your documentation oftentimes does not arrive in court for at least …

TWO YEARS AFTER THE EVENT!!!

Preop Prep in the ED

A nurse cares for a patient after a fall on the ice. The patient is sent to the OR to repair a hip fracture. • The nurse documents the patient’s full assessment in the ED,

noting a vague redness of the orbit of R eye, with a slight ‘irritation’ of the sclera.

• Patient is sent to the OR and undergoes a successful repair of left hip fracture.

• Patient awakens in PACU with R eye blindness.• The eyesight is never regained and the patient sues the

hospital for negligence of ‘probable carelessness’ during the surgical procedure.

 Timely Documentation

Extensive L antecubital injury due to IV extravasation noted postoperatively.

• No nursing assessments documented from the PACU that the IV site was checked every 15-30 minutes per hospital policy.

• The nurse’s initials were marked for the IV assessment every 30 minutes on the nursing flow sheet once pt. was admitted to the ICU.• No findings/descriptions of actual site assessment were ever

documented. • Experts were prepared to testify that checking the site at least every

hour is the national standard of care.

Legal Eagle Eye, 2007a

Not Documented, Not Done

A postoperative patient’s wife had called the RN because her husband was “breathing heavy.”

• The RN reassured family, assessed patient, and called the MD at home, but the RN documented no assessments.

• MD left immediately for the hospital and communicated while en route.

• A code blue was called upon arrival to the patient’s room.• The patient died after experiencing a pulmonary embolism.

Legal Eagle Eye, 2008

• The RN did not document the contact with the MD until writing the progress note ON THE FOLLOWING DAY.

• The RN claimed it was her practice to make handwritten notes during the shift and enter them on the electronic medical record (EMR) ‘when she had time’.

"It used to be that if it wasn't charted it wasn't done, now with the electronic medical record our thoughts

are, if it's charted then prove it."

Informed Consent

• Patient to undergo an Appe, signed a preop standard Informed Consent, whichn had preprinted language stating consent to “other urgent procedures that were unanticipated.”

• P’t. expressed clearly to preop nurse that he did not want a urinary catheter placed during the procedure.

• A urinary catheter was placed, which allegedly caused urological complications for up to 2 year after the procedure.

Legal Eagle Eye, 15[10], 2007e

Details NeededAn RN was completing vital signs on the night shift and quietly

awakened the patient to let her know that he would be taking her temperature.

• An axillary probe was used for the procedure.• Patient did not respond until nurse left the room where she

then called her husband and insisted the male nurse sexually harassed her by putting his penis under her arm.

• Husband called the police who met him at the hospital. • Nurse was mandated a leave for 2 weeks during the

investigation by police and hospital legal team.

HIPPA in PACU

• An RN was prepping a patient for a TEE in the PACU• Many other patients were close by, privacy protected only by a cloth curtain.• The MD started to prep for the procedure; the RN reminded him to put on

gloves because the “p’t. is infected with Hepatitis C”.• Afterwards, the p’t. filed a formal complaint with the hospital over the fact the RN

‘announced his Hep C status’ loud enough to be heard by other patients & staff.• The hospital then fired the RN for breaching the patients medical confidentiality,

mandated by HIPPA.• The RN sued the hospital for wrongful termination and defamation.

Scant Details: Dangerous

• A teenage girl underwent surgery to correct scoliosis.• The surgery concluded without complication, but in the PACU,

the patient was became unresponsive, coded and died.• The family sued and nurses were accused of failing to assess

patient closely.• The medical record review contained 2 different pages of nursing

notes which differed in detail, form and substance, lacking on any assessment or consistent vital sign documentation.

Lippincott, Williams, & Wilkins, 2008, p.18

Documenting in OR/PACU

• 92 yr. old patient, injured at home, taken to ED and then to OR for emergent eye surgery. She then went to PACU and was admitted to the Med/Surg floor.

• The next day, she feeling better and asked for pancakes for breakfast; tragically she choked on the food and was rushed to the OR for a food bolus removal, where she died.

• Family sued the hospital claiming she choked because the staff lost her dentures with the first surgery; therefore, not allowing her to chew her food properly.

Final Tidbits

Documentation as a Witness

From a legal standpoint, documented care is as important as actual care.

“Courts assume that care was not done if it was not documented...Failure to document implies failure to

provide care”

• Attorneys search medical records to find evidence to defend against negligence claims.

• They often discover omissions, alterations, contradictions, inconsistencies, incomplete and untimely notes which damage the defense considerably.

  Legal Eagle Eye, 2007d

Lippincott, Williams, and Wilkins, 2008

Remember: Even with exceptional provision of care, lack of

adequate documentation often leads to out-of-court settlements or court decisions in favor of the Plaintiff.

A view to avoid……. References

• Allnurses.com (2017).

• American Nurses Association (2010b) ANA’s principles for nursing documentation: Guidance for Registered Nurses. Silver Spring, MD: ANA, Nursebooks.org.

• Brothers, D. (2015). The Essential Legal Handbook for Nurses. Best Practices for Nursing Staff. HCPro: Brentwood, TN.

• Bothers, D. (2015). The Nurse Managers Legal Companion. A practical Guide to Legal Best Practices. HCPro: Brentwood, TN.

• Croke, E.M. (2003). Nurses, negligence and malpractice: An analysis based on more than 250 cases against nurses. American Journal of Nursing, 103(9), 54 – 63.

• Centers for Medicare and Medicaid, (2017). Conditions of Participation.

• Di Leonardi, B.C. (2009). Professional documentation: Safe, effective and legal. Rn.com. AMN Healthcare Education Services.

• http://lms.rn.com/getpdf.php/1939.pdfFeutz-Harter, S. (2012). Legal and Ethical Standards for Nurses. 4th Edition. PHC Publishing. Eau Claire, Wisconsin.

• Feutz-Harter, (2012).

• Helm, A. (2003). Nursing malpractice: Sidestepping legal minefields. Philadelphia: Lippincott, Williams & Wilkins.

• Joint Commission (TJC). (2011a). Sentinel event data: Root causes by event type. Oakbrook, IL: TJC.

• Retrieved January 2012 from http://www.jointcommission.org/assets/1/18/Root_Causes_Event_Type_2004-3Q2011.pdfWhite, 2008, p. 42.

• Legal Eagle Eye Newsletter for the Nursing Profession. (2007a). (2007d, 2008, 2007e, 2017.).

• Lippincott, Williams & Wilkins. (2008). Complete guide to documentation, 2nd edition. Philadelphia: Author.

• National Quality Forum (NQF), (2011). Serious reportable events In healthcare—2011 update: A consensus report. Washington, DC:

• NQF. Paans, et al., 2010.

• Reising, D. (2012). Make your nursing care malpractice-proof. American Nurse Today, 7(1), 24 – 29.

• www.nso.com

• White, (2008).