CHART THE COURSE The plaintiff's lawyer will dissect the medical record.

In a malpractice case, the medical record can be either your best friend — or your worst enemy. Documen-tation is meant to provide the record of patient care, the patient's medical history, the basis for billing and reimbursement, quality-of-care indicators, and possibly clinical data for research and education. Documentation is the story of the patient's experience across the continuum of care. But if your facility is sued for malpractice, the medical record will suddenly become most invaluable as a legal document.

In court, the medical record is the care rendered. It will be introduced as evidence at trial. Jurors view good record-keeping as an indicator of good care — poor documentation can create an aura of poor care and damage your credibility. Here's how defensive documentation can protect you in the event of a suit.

Deficiencies in documentation
There are 8 common charting errors that can compromise a liability defense:

• failing to record pertinent health information;
• failing to record nursing actions;
• failing to correctly record medications;
• recording on the wrong chart;
• failing to document patient treatments;
• failing to record changes in condition;
• transcribing orders incorrectly; and
• writing illegibly.

If a malpractice suit results because of an adverse patient outcome, the poor documentation is a real double-whammy. On average, malpractice suits can take 3 to 7 years to reach trial. With the passage of this amount of time, witnesses may be unavailable and memories dim — but the medical record remains.

Plaintiffs' lawyers will look for alterations or the appearance of alterations, contradictions, inconsistencies, omissions, time delays and unexplained time gaps. These are the red flags and weak spots plaintiffs' lawyers love to exploit in court.

Solid documentation, every time
Good medical records have many attributes. Documentation should be labeled, legible, dated (with month, day, year and time), timely, factual, objective, accurate, consistent and complete. If you're using a paper medical record, there shouldn't be unused pages or spaces. If you're using an electronic health record, you should note blank fields with an "N/A" or asterisk indicating that the field has been reviewed. Avoid leaving a vague absence of documentation in the record. Let's take a closer look at the 4 keys to good documentation:

• Factual: Record only what is known, not what's presumed. For example, "Patient rated pain at a 0 on the pain rating scale," is more factual than "Patient didn't appear to be in pain." Don't enter personal opinions into documentation, and don't document long, defensive notes in the medical record.

• Objective: Chart only what you see, hear, feel (as in touch, not emotion) and smell. For example, "Patient appeared to be her normal self," does not objectively describe the patient's status.

• Timely: It's better to have a late note than a blank space in the record. However, late entries must list the date and time of the late entry. If possible, chart why the entry was made late.

• Thorough: Describe actions taken and patient responses. Tell the patient's story. "Physician notified," doesn't describe what was reported to the physician nor does it outline a plan of care. Better documentation would state, "Dr. Smith's office notified at 0930 of patient's uncontrolled pain. Sue Jones, RN, stated that Dr. Smith will return call in 30 minutes."

Finally, never forget that all providers documenting in the record should sign and date documentation.

POP QUIZ
3 Suit-Related
True-or-False Scenarios

The answers to these true-or-false questions might surprise you.

• If it wasn't charted, it wasn't done.
  False. In nursing school, we learned the age-old adage, "If it wasn't documented, it wasn't done." Although this is sound advice, and we healthcare providers should strive to document as much as possible, smart lawyers can successfully defend cases with less-than-perfect documentation by drawing inferences using other indicators.
• Information shared in the post-op report is admissible as evidence in a case.
  True. Communications among care providers during the post-op report, or even at change of shift, are admissible in a case.
• Personal notes kept at a nurse's home are admissible as evidence in a case.
  True. Facilities should educate staff on raising concerns with supervisors rather than keeping notes at home.

— Jan Kleinhesselink, RN, BSHM, and Carmen Lester, RN, JD

Electronic or paper records
Whether your facility uses a paper chart, an electronic health record or a hybrid of the two, patients should always have complete and correct medical records. There are pros and cons to each of these documentation systems but, from a legal standpoint, it's a lot harder to hide errors if your facility uses electronic medical records. Many of these systems make it impossible to skip areas of the chart by using "required fields." They also provide accurate date and time stamps that can demonstrate how timely you are with your charting. Electronic records can also, however, introduce risk into your organization. Be careful when using "charting by exception" methodologies and auto-recalls, and overusing alerts and flags.

Healthcare providers will often argue that documenting on paper is "so much faster." The paper record is often what providers are used to and everything within it can be easily located. However, with paper charts, times and dates can be easily missed, an entry may not be authenticated with a signature and, let's be honest, there's a temptation to "pre-chart" to make documentation even faster. It's tempting, but fudging a time here or an action there isn't worth it. A plaintiff's lawyer will find out.

Support yourself
A final tip: Patient education is a top priority during the patient's stay at your facility. In your notes, include the date and time of instructions; identify family members or caregivers present; document knowledge or understanding indicated by the patient; document any returned demonstrations performed by the patient; and document any educational materials provided to the patient (booklets, pamphlets, instruction sheets).

"I don't have time for that kind of charting," nurses might say (with exasperation, as they juggle a mop, a sick patient, a stack of files and a cranky surgeon). And, yes, they should take care of patients first. We all recognize that emergencies happen — requiring rapid, hands-on responses — leading to documentation written on a paper towel. Whether you have to document on a paper towel, your scrub pants or your hand, document the events as accurately as you can. As soon as possible after the event, when there's time to be clear and thoughtful, document in the patient record.

You may have to stay long past your shift to get all this documentation completed, but when the time comes to explain what you did, you'll be glad you took the time to document. Take credit for the great care you provided and get it in the chart.

The crucial question to keep in mind at all times needs to be, "How does my documentation support the actions I took to care for this patient?" If you did all you could for a patient, the documentation should reflect that. And that level of thoroughness just might save you a whole lot of trouble later on.

LOOK AHEAD
If You End Up in Court

If you're ever called upon for a deposition or to testify in court, you want to be able to establish credibility for yourself and your facility. The time has come to convince a judge or jury that you're an excellent healthcare provider.

The best way to do so is to refer to your documentation in the medical record. Remember, years will have passed since you cared for the patient, so you likely won't be able to rely on memory alone. You'll sink or swim with your notes. You'll want to be able to show that you documented specific findings and observations of ongoing processes; activity and diet tolerances; pain levels; wound healing; any changes in patient status or outcome; any needed interventions (such as treatments, therapies and medications) and the outcomes and responses to such interventions; notifications to the physician, your supervisor or family members; and, finally, the plan for care and follow-up.

Modern courtrooms use visual displays such as big-screen TVs to present evidence to the jury box. Your notes will be up there, larger than life!

— Jan Kleinhesselink, RN, BSHM, and Carmen Lester, RN, JD