It is not what is said, but how it is said that so often becomes the theme for malpractice trial tactics. Defendant and plaintiff attorneys will use the words of the nurse to accentuate the tone of the medical record. Enlarging medical records to billboard size may catapult a nurse’s simple note into an embarrassing display of observations gone awry.

To prevent charting from receiving such scrutiny and giving an inaccurate perception of the care that was actually delivered, the charting guidelines in the Sidebar should be followed.

When attorneys review medical records, they seek a possible breach in standard care, an injury to the patient, and a causal link between the breach and the injury. One’s memory of an event where it differs from the medical record is unlikely to be persuasive. The poorly written but voluminous record often increases the liability risk by providing the plaintiff’s attorney with ample material from which to choose the example to build the plaintiff’s case. A well-written medical record may influence the attorney to have the plaintiff drop the matter without further action. Investing more time in record documentation can be beneficial and can help to avoid the stressful, expensive, and demoralizing effects of malpractice litigation.

Guidelines for Charting

All appropriate blanks must be filled in or boxes checked. Empty spaces give the impression that care was not delivered, side rails were not up as ordered, or the patient was not turned in bed or out of bed as required. The patient’s attorney will carefully scrutinize all of the forms in the medical record. A case may be decided on the failure to fill in a blank or check the patient care plan for instructions on whether, for example, a patient needs assistance with feeding or ambulation.

• Accurately describe all unusual occurrences. Masking their existence could send a red flag to a plaintiff’s attorney that the hospital is trying to hide something.

• Any threats and complaints must be documented in a non-judgmental, neutral manner. If health care personnel document their irritation and blame the patient, the tone is set for a hostile atmosphere that will give the wrong impression of care delivered.

• Patient and family concerns must be documented, and follow-up related to those concerns is paramount. Lawsuits often can be avoided if the nurses indicate they have followed up on a family’s concerns.

• Avoid using defensive, argumentative, blaming, and vague language.

• If another person’s entry requires action or follow-up, do it and document the response.

• The health care professional must use legible penmanship. Errors generated by illegible writing can be avoided. Good penmanship will eliminate the need for guesswork.

• Avoid any comments implying the patient’s complaints are groundless. Avoid statements in the record that reveal frustration with the patient.

• Record alteration must include the date and time of the change with careful attention not to obliterate the record itself.

• Determine if the new note would be more appropriate than a change in the prior record.

• The record should reflect acknowledgement and discussion with the patient of possible outcomes and complications.

• Avoid any reference in the record that could be interpreted as uncaring, insensitive, or implying negligence.

• Statements that may have legal significance, but which have no direct bearing on the care of the patient should not be written in the record.

• Risk-prevention activity, such as completion of an incident report, notification of insurance claims personnel, risk management, or contact with an attorney, should not be within the record. This may inadvertently disclose information that should have been privileged, but because of disclosure, could be used by the defendant in a lawsuit.

• Medical mishaps should be documented concisely. The incidents should not be overstated or misrepresented, but the mishaps should not be concealed or understated.

• Legal threats and complaints about the quality of care may be briefly documented in the patient’s record in a non-judgmental, neutral manner. Do not use terms such as “vicious, nasty, malicious,” in the medical record. A detailed report of the threat or complaint should be documented precisely as stated in the incident report.

• Do not write, “Patient dissatisfied and threatening to sue.” Instead write, “Patient expressing dissatisfaction with care and threatening to sue. The following measures were undertaken in response to his complaints.”

• Do not understate the patient’s condition. Clearly document their mentation and any other observations objectively.

• Always document the worries or concerns expressed by the patient or family. Then document the nurse’s actions to calm their fears.

• Document in the record sources of information if other than the patient, such as wife or child.

• Document important warnings given to the patient at the time of discharge. Failure to provide pertinent information at time of discharge can trigger a readmission and complications that can be traced to the inadequate discharge instructions.

• Always document evidence of patient noncompliance.

• Informed consent documentation is mandatory. It is highly recommended to use a separate form for the informed consent.

• Any statement in the record by a member of the health care team may also be used as expert testimony. Thus, a recommendation or an implied need for action written in the record may be recognized as a standard of care and used to prove negligence if the response is inadequate. Avoid documenting the need for an action that is not going to be taken.

• Avoid direct disagreement with any other health professional in the record.

• If an injury occurs to a patient, do not make statements in the record about being careful prior to the injury.

• Do not blame others in the record.

• If another professional does not respond, document that the person was notified, the information relayed, and the time of such notification.

• Any failure to respond can be deduced from the records, but a full detail should be outlined in the incident report.

• If an instrument breaks, describe the break, but omit any theories on why it broke. If a bottle of IV fluid, for example, contains a precipitate, describe its appearance, but omit any opinion of the possible cause of the precipitate.

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Service Area: Attorney Maureen Kroll provides services in Westmoreland County, PA, including the communities of Greensburg, Irwin, Jeannette, Ligonier, Mt. Pleasant, North Huntingdon, Latrobe, and Scottdale.  If you are in need of an injury attorney, help with Social Security Disability, a divorce lawyer with experience in child custody, or help filing bankruptcy, please contact Attorney Maureen Kroll today.  Maureen's areas of concentration also include wills and estates and elder law.