Medical Records Documentation: Pitfalls & Legal ...

Medical Records Documentation: Pitfalls & Legal ...

Medical Records Documentation: Pitfalls & Legal Considerations Dana M. Bowers, Esq. Jaclyn Castano, MSN, RN Meghan R. Snide, BSN, MS Medically Ready ForceReady Medical Force 1 Presenter Dana M. Bowers Attorney-Adviser, Healthcare Law Office of General Counsel Defense Health Agency Walter Reed National Military Medical Center Bethesda, MD

Medically Ready ForceReady Medical Force 2 Dana M. Bowers, Esq. Dana M. Bowers currently serves as an Attorney-Advisor specializing in Healthcare Law for Walter Reed National Military Medical Center in Bethesda, Maryland. Her previous work experience includes serving as in-house counsel for West Virginia United Health System - an academic

medical system located in Morgantown, West Virginia - where she provided legal counsel and litigation support to hospital staff regarding liability, medico-legal issues, licensure, and employment matters for System hospitals and associated clinics. Prior to that she practiced as a litigator in Chicago, Illinois for cases involving legal malpractice, construction negligence, industrial accidents, automobile accidents, insurance coverage, and premises liability. She received her undergraduate degree from the University of Florida in 2002, and her J.D. from Chicago-Kent College of Law in 2006. She is licensed to practice in Illinois and West Virginia. Medically Ready ForceReady Medical Force 3

Panel Members Jaclyn Castano, MSN, RN Patient Safety Manager Madigan Army Medical Center - Tacoma, WA Meghan R. Snide, BSN, MS Chief, Risk Management Operations Air Force Medical Operations Agency - Falls Church, VA Medically Ready ForceReady Medical Force 4 Meghan R. Snide, BSN, MS

Ms. Megan Snide is currently serving as the Chief of Risk Management Operations at the Defense Health Agency, located in Falls Church, Virginia. Ms. Snide has served on Quality Assurance and Risk Management Committees, on a Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) Preparation Working Group, as a JCAHO Chapter Champion, in Risk Management Operations and within the Quality Management Division of the DoD. In her current position, Ms. Snide is responsible for planning and implementing policy and programs regarding health care risk management for the Air Force Medical Services (AFMS), ensuring corporate compliance with federal, DoD and Air Force Regulation and as the principal advisor to the AFMS personal and Air Force Surgeon General (AF/SG). She also serves as a subject matter expert to support the AF/SG Trusted Care task force to implement principles and practices of high reliability across the

AFMS. Ms. Snide received her Bachelor of Science in Nursing from the State University of New York located in Binghamton, New York and her Master of Science in Management from Troy State University, located in Troy, Alabama. Medically Ready ForceReady Medical Force 5 Jaclyn Castano, MSN, RN Ms. Jaclyn Castano is currently serving as the Chief of Patient Safety at Madigan Army Medical Center in Tacoma,

Washington. Her previous work experience includes serving as the Clinical Nurse and Supervisor for nine years in the emergency department of this same hospital. During this time, Ms. Castano expanded her professional knowledge in the health care arena and exposed herself to different accrediting and regulatory agencies, further developing her leadership skills. Prior to this, Ms. Castano worked at Shady Grove Adventist Hospital in Maryland. She received her Bachelors of Science in Nursing from the Rochester Community and Technical College located in Rochester, Minnesota and her Masters of Science in Nursing and Nursing Education from Winona State University, located in Winona, Minnesota. She is currently licensed in the states of Washington and Maryland. Medically Ready ForceReady Medical Force

6 Disclosures Dana M. Bowers, Meghan R. Snide, and Jaclyn Castano have no relevant financial or non-financial relationships to disclose relating to the content of this activity. The views expressed in this presentation are those of the author and do not necessarily reflect the official policy or position of the Department of Defense, not the U.S. Government. This continuing education activity is managed and accredited by the Defense Health Agency J-7 Continuing Education Program Office (DHA J-7 CEPO). DHA J7 CEPO and all accrediting organizations do not support or endorse any product or service mentioned in this activity. DHA J-7 CEPO staff, as well as activity planners and reviewers have no relevant financial or non-financial interest to disclose. Commercial support was not received for this activity. Medically Ready ForceReady Medical Force

7 Disclaimer The materials and information provided during this training are for informational purposes only and not for the purpose of providing legal advice. Nothing in this presentation creates or is intended to create an attorney-client relationship, and is not a substitute for obtaining legal advice. Legal determinations are fact specific, but intended to assist with issue spotting. Consult with your agency counsel to obtain advice with respect to any particular issue or problem. Different agencies and services (including DHA, the U.S. Army/Navy/Air Force) have different regulatory guidance. Consult your agency-specific requirements. Licensed Individual Practitioners (LIPs) are subject to state specific guidance as well as guidance put forth by the U.S. Government and DoD. Medically Ready ForceReady Medical Force

8 Learning Objectives At the conclusion of this activity, participants will be able to: 1. Review medical malpractice cases and how they are litigated. 2. Understand the role of the medical record in a litigation setting. 3. Identify improper documentation and the negative impact it has on the outcome of patient care and litigation. 4. Apply best practices to medical record documentation. Medically Ready ForceReady Medical Force 6 Federal Tort

Claims Act (FTCA) Federal Tort Claims Act (FTCA) Medically Ready ForceReady Medical Force 7 Federal Tort Claims Act (FTCA) Under the doctrine of sovereign immunity, you are not allowed to sue a government entity without its express permission. The Federal Tort Claims Act (FTCA) permits certain lawsuits against a federal government entity and federal employees who have acted within the scope of employment while causing injuries. The FTCA allows monetary compensation to be awarded when injuries are caused

by wrongful (or negligent) actions of government employees. Negligent conduct that falls outside the scope of employment is not usually covered. Under the FTCA, the state medical malpractice laws that would normally apply are still in effect. See 28 USC 1346, 28 USC 2671, et. seq. Medically Ready ForceReady Medical Force 8 Federal Tort Claims Act (FTCA) - Permits individuals to bring certain medical malpractice claims - Administrative procedures must be followed to file the claim - Claim must be filed within two years

- Scope of claim depends on state law Medically Ready ForceReady Medical Force 9 Life of a Lawsuit Life of a Lawsuit Notice of Claim - If under the FTCA, file an Administrative Claim with the Federal Agency responsible for the alleged misconduct. Government has 6 months to

respond to claim. Pleadings - Complaint filed by Plaintiff - Answer filed by Defendant - Other responsive pleadings Discovery - Interrogatories/RPDs/RFAs - Depositions Trial Medically Ready ForceReady Medical Force

13 Timeline The Life of a Lawsuit Alleged Negligence Occurs: December 1, 2019 Statute of Limitations Expires: 2 years (or more!) Filed: December 1, 2021 Discovery: 18-24 months Completed: December 1, 2023 Trial Date: 6-8 months Completed: June 2024 - August 2024 Appeal: 1-1.5 years Completed: June December 2025 Retrial: 1-2 years Completed: June 2026-2027 ** Possible further delays (Lengthy Discovery, Nonsuit, Settlement Negotiations, Trial Delays, etc.) Medically Ready ForceReady Medical Force

14 Timeline The Life of a Lawsuit If act of medical negligence occurred on December 1, 2019 We would expect (using average timelines) that the case may not be completed until: June 2027! Medically Ready ForceReady Medical Force 15 Timeline The Life of a Lawsuit What were you doing June 2012?

Medically Ready ForceReady Medical Force 16 Litigation Outcomes - Dropped - Dismissal - Settlement - Defense Verdict - Plaintiffs Verdict Medically Ready ForceReady Medical Force 17 Elements of a Medical Malpractice Case

- Duty - Breach - Causation - Damages Medically Ready ForceReady Medical Force 18 Elements of a Medical Malpractice Case Duty Created By the Establishment of a Provider-Patient Relationship Breach Causation

Damages Medically Ready ForceReady Medical Force 19 Elements of a Medical Malpractice Case Duty Breach The failure to follow the accepted standard of care applicable to the health care provider Causation Damages

Medically Ready ForceReady Medical Force 20 Elements of a Medical Malpractice Case Duty Breach Causation The Defendants actions were a proximate cause of the Plaintiffs injury. There is a causal relationship between a given physical condition and the defendant's negligent act. Damages

Medically Ready ForceReady Medical Force 21 Elements of a Medical Malpractice Case Duty Breach Causation Damages $$$$ Includes both economic and non-economic Medical Malpractice Cap, if applicable (relies on State

law) Medically Ready ForceReady Medical Force 22 Documentation Medically Ready ForceReady Medical Force 23 Importance Of Documentation: Why Does It Matter? - Legal document required by law - Patient safety - Used for implementing quality improvement

initiatives - Used for utilization reviews and to obtain reimbursement - Used for research and education - Most credible evidence in legal proceedings Medically Ready ForceReady Medical Force 24 POLLING QUESTION #1: How many members of the audience have been involved in a lawsuit? As either a Plaintiff, Defendant, or Witness? - Yes - No Medically Ready ForceReady Medical Force

25 POLLING QUESTION #2: Of the people that answered yes How many found the process to be: (a) (b) (c) (d) (e) (f) Fun, would love to do it again! Ok, a learning experience. Neutral. HORRIBLE! but a learning experience. I never want to do that again!

Please lawyers, go away. Medically Ready ForceReady Medical Force 26 Documentation & Medical Malpractice Litigation Medically Ready ForceReady Medical Force 27 Importance Of Documentation Plaintiffs goal in case is to identify through records (or lack of records) breaches of standard of care by practitioner that caused injury to patient.

- Not concerned with what really happened - What is not in the record is fertile ground for plaintiff(s) - Create a case out of holes in the record - Examples: bed alarms, code sheets, monitoring strips, Medically vitals Ready ForceReady Medical Force 28 Importance Of Documentation: Considerations When drafting documentation memorializing patient care be FLAT: Factual Information

Legibility Abbreviations Timeliness Medically Ready ForceReady Medical Force 29 When Drafting Documentation Be FLAT - Factual Information Concise and complete Credible Detailed Consistent Current Organized - Legibility

- Abbreviations - Timeliness Feutz-Harter, Sheryl. Legal & Ethical Standards for Nurses. Eau Claire: PESI, 2006. Medically Ready ForceReady Medical Force 30 When Drafting Documentation Be FLAT - Factual Information - Legibility - Write clearly - Promptness is important but documentation must also be legible

- If illegible, negative impressions of the author may form - Documentation must be legible for jurors during trial - Abbreviations Medically Ready Feutz-Harter, Sheryl. LegalForceReady & Ethical StandardsMedical for Nurses.Force Eau Claire: PESI, 2006. 31

When Drafting Documentation Be FLAT - Factual Information - Legibility - Abbreviations Unapproved or unknown abbreviations may lead to difficulty in interpreting information and subsequent patient harm may result - Timeliness Medically Ready Feutz-Harter, Sheryl. LegalForceReady & Ethical StandardsMedical for Nurses. Force Eau Claire: PESI, 2006.

32 POLLING QUESTION #3: What does the Abbreviation PE stand for: (a) Physical Exam (b) Partial Epilepsy (c) Pericardial Effusion (d) Pulmonary Embolism (e) Pre-Eclampsia (f) Pelvic Examination Medically Ready ForceReady Medical Force 33 POLLING QUESTION #4:

What does the Abbreviation CP stand for: (a) Cerebral Palsy (b) Constrictive Pericarditis (c) Chronic Pain (d) Chest Pain (e) Command Post Medically Ready ForceReady Medical Force 34 When drafting documentation When DraftingBeDocumentation FLAT Be FLAT

- Factual Information - Legibility - Abbreviations - Timeliness > > > > > Time specific documentation leads to increased accuracy and

becomes important in litigation processes > By promptly recording information, other health care providers can be cognizant of patient developments Information should be as time specific as possible Relate activity to the time it occurred Enter information into permanent sources promptly Times must be accurate Medically Ready Feutz-Harter, Sheryl. LegalForceReady

& Ethical StandardsMedical for Nurses. Force Eau Claire: PESI, 2006. 35 Importance Of Documentation: Practical Applications Documentation Pitfalls: - Vague descriptions or explanations - Corrections To Correct or Delete an Entry:

- Draw a line through the incorrect entry - Initial chart with date and time of correction - Add correct information with date and time of entry and reason for the change Late Entries: - When care was given? - When entry was made?

- If significantly later, why? Medically Ready ForceReady Medical Force 36 Importance Of Documentation: Do and Dont > What: DO - Include factual and objective information only - Be clear, concise, and credible DO NOT

- Do not include speculations - Do not include personal opinions - Do not let emotions creep into the medical record Medically Ready ForceReady Medical Force 37 Importance Of Documentation: Do and Dont > What: Patient rudely demanding more pain meds. When this nurse refused, patient became belligerent and refused to allow me to [medical treatment]. Patient is obviously

a drug seeker. vs. Upon entering room, patient raised voice and stated give me more pain meds now! Informed patient that additional pain meds were not due until [time]. Patient then began shouting obscenities. Requested that patient permit me to [medical treatment], he refused. [Appropriate steps taken in response to refusal of treatment] Medically Ready ForceReady Medical Force 38 Importance Of Documentation: Do and Dont > When:

DO - Chart should reflect the actual time the documentation was made - Document immediately after an observation, treatment, event, or assessment - Late entries should be made as soon as possible DONT - Do not make entries in advance - Do not pre-date back-date entries Medically Readyor ForceReady Medical

Force 39 Importance Of Documentation: Do and Dont >Where: DO Keep all patient paperwork and other document in the approved medical record or other designated location. DONT Do not keep patient paperwork with other documents or outside of the approved medical record Do not document patient information other than on approved forms ** If you must write notes on scrap paper, transfer the information to the

record as soon as possible and put the scrap paper in a confidential destruction bin immediately thereafter Medically Ready ForceReady Medical Force 40 Importance Of Documentation: Do and Dont > NEVER EVER: - Write vague descriptions - Alter or falsify a medical record - Use unacceptable abbreviations

Medically Ready ForceReady Medical Force 41 POLLING QUESTION #5: THIS IS COMPLETELY ANONYMOUS: How many members of the audience have ever gone back to alter an electronic medical record without also documenting an explanation for the change? - Yes - No Medically Ready ForceReady Medical Force 42 Importance Of Documentation:

Copy Forward Copy and paste or copy forward functionality can support efficiency during clinical documentation, but may promote inaccurate documentation with risks for patient safety. Do not call copy-forward a template. COPY FORWARD ASSOCIATED PROBLEMS: - Creation of new inaccuracies: Post-op Day 1 is repeated over, and over, and over for five weeks. - Rapid Propagation of Errors: Resolved condition is continuously renewed. - Internal Consistencies: afebrile v. fever in updated vitals - Note Bloat https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5373750/ Medically Ready ForceReady Medical Force 43

POLLING QUESTION #6: THIS IS COMPLETELY ANONYMOUS: How many members of the audience use copy & paste or copy forward at least once a week? - Yes - No Medically Ready ForceReady Medical Force 44 Importance Of Documentation: Litigation Experience - Memories fade (think of the medical record as time capsule) - What is not documented is usually more damaging than

what is - (there is little risk in charting too much) - If its not charted - it didnt happen - The little things can hurt big - Subjective words need context, use exact wording if possible - Juries/judges trust written documents over recollection and 45 Medically Ready ForceReady Medical Force - testimony POLLING QUESTION #7: How many members of the audience have ever served on a jury? - Yes - No

Medically Ready ForceReady Medical Force 46 POLLING QUESTION #8: Of the people that answered yes Did the jurors rely more on: (a) (b) (c) (d) (e) Witness testimony Written Documentation Tangible Evidence (i.e. photos)

All of the above, equally Other Medically Ready ForceReady Medical Force 47 Importance Of Documentation: Testimony - Litigation relies heavily on both documentation and witness testimony - If you are called to give testimony during a deposition or trial, you can ask to review and inspect your records - Changes to an electronic medical record can be tracked - It is important to maintain real-time documentation (i.e. photos, code sheets, monitoring strips) - Health Care Providers (HCPs) love to help people it transfers to your testimony Medically Ready ForceReady Medical Force

48 Key Takeaways Medical record documentation is the most credible evidence in legal proceedings Litigating claims is a months if not year long process Memories fade Be FLAT in your documentation practices Be objective and clear Never alter or falsify a medical record Avoid Copy & Paste/ Copy Forward functions Medically Ready ForceReady Medical Force 49

Panel Discussion Dana M. Bowers, Esq. Jaclyn Castano, MSN, RN Meghan R. Snide, BSN, MS Medically Ready ForceReady Medical Force 50 Questions? Contact Information Dana M. Bowers, Esq. Staff Judge Advocates Office Walter Reed National Military Medical Center

[email protected] #(301) 319-4585 Medically Ready ForceReady Medical Force 52 References Federal Tort Claims Act, 28 USC, 2671. Retrieved from https://uscode.house.gov/view.xhtml?path=/ [email protected]/part6/chapter171&edition=prelim Feutz-Harter, S. (2012). Legal and ethical standards for nurses. PHC Publishing Group, Eau Claire, WI. Harrington, L. (2017). Copy-forward in electronic health records: Lipstick on a pig. The Joint Commission Journal on Quality and Patient Safety, 43, 371-374. doi: https://doi.org/10.1016/j.jcjq.2017.04.007 Tsou, A.Y., Lehmann, C.U., Michel, J., Solomon, R., Possanza, L., & Gandhi, T. (2017). Safe Practices for Copy and Paste in the EHR. Systematic review, recommendations, and novel model for health IT collaboration. Applied Clinical Informatics, 8(1), 12-34. doi: 10.4338/ACI-2016-09-R-0150. United States as Defendant, 28 USC, 1346. Retrieved from https://uscode.house.gov/view.xhtml? req=code+of+federal+regulations&f=treesort&num=1445

Medically Ready ForceReady Medical Force 53 How to Obtain CE Credits Following the event, additional instructions for how to obtain CE credit will be sent via email upon completion of the course. To receive continuing education credit (CE), you must complete the program posttest and evaluation before collecting your certificate. The posttest and evaluation will be available through 8 Aug 2019 at 2359 pm ET. Medically Ready ForceReady Medical Force 54

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