Kyle N. Sweet

Sweet Law Firm414 N.W. 4th Street

Suite 150Oklahoma City, OK 73102

405-601-9400405-684-0900 cell

Kyle@Sweetlawfirm.com ©2011 Sweet Law Firm

Perinatal SafetyA LEGAL PERSPECTIVE ©

Presentation by Kyle SweetSweet Law FirmOctober 4, 2011

©2011 Sweet Law Firm

Remember Your Guidelines

Know Your Guidelines = Standard of Care

Guidelines = Gun to Your Head©2011 Sweet Law Firm

Liability Implications Approximately 2/3 of claims in perinatal

cases involve one or more of the following issues:

Failure to diagnose and treat fetal

distress,

Ineffective management of shoulder

dystocia,

Problems with technical performance

during operative delivery, and Teamwork and communication failures

among providers and with patients.

©2011 Sweet Law Firm

Medical Negligence

What is Negligence? A theory of liability concerning

allegations of medical malpractice.

What is Liability? Bearing the legal responsibilities for

negligent acts or omissions.

©2011 Sweet Law Firm

Medical Negligence

A person who alleges Negligent Malpractice must prove FOUR elements:

Duty: Must owe a duty to a patient. Breach: Must have evidence, usually by an expert

opinion, that the health care provider violated that duty by failing to follow the applicable standards of care.

Causation: The breach of the applicable standard of care must cause an injury to the patient.

Damages: The amount of money it takes to keep a brain injured human being alive, fed, transported, medicated, educated, treated, rehabilitated, entertained, and monitored.

©2011 Sweet Law Firm

Health Care Providers’ Practical Responsibilities

Assessing the patient; Monitoring the patient; Diagnosing the patient (distress in

baby and appreciating the risk factors the patient has for developing distress);

Preventing an emergency or sentinel event;

Reacting to an emergency or sentinel event;

Skills in the performance of surgical tasks;

Documentation.

©2011 Sweet Law Firm

What Lawyers Look For Apply the retrospectoscope to an event to

determine IF something could have prevented the outcome.

If a different treatment course COULD have resulted in a different outcome, then you have a lawsuit on your hands.

To evaluate a case the lawyer will have two things:

1. Your charting entries and 2. The Fetal Monitoring Strips.

There are no depositions, peer reviews, incident reports, or expert evaluations. Expert evaluation prior to a lawsuit being

filed is no longer necessary in Oklahoma. ©2011 Sweet Law Firm

Effective Documentation

Certain legal basics form a foundation for effective documentation.

Adage: “If it wasn’t documented, it wasn’t done.” Organizing documentation on five steps of the

nursing process: assessment, planning, nursing diagnosis, interventions and evaluation.

Charting should leave no question in a future reader’s mind that care givers continuously assessed patient’s condition and monitored progress.

To help ensure legal credibility, make sure your charting is:

Timely Accurate Truthful Appropriate ©2011 Sweet Law Firm

Effective documentation continued Timely:

Means documenting as soon as possible after it’s given; Regular charting demonstrates checking condition; Don’t wait until the end of your shift,

May not recall details or be pressed for time. Accurate:

Means document facts about care: only what you see, hear, smell or feel.

Only document care you personally gave. Write specific, accurate descriptions.

Do report “Bright red blood 18 cm in diameter on bed linens”

Don’t just report “Bed soaked with blood.” Don’t use meaningless: “patient had a good night” or

“appears” or “seems.” Use:

“no change in condition” or, “patient assessed, vital signs w/in normal limits, no c/o pain.”©2011 Sweet Law Firm

Effective documentation continued

Truthful: Means avoiding assumptions and documenting

only what you have actually observed. Appropriate:

Means only statements you’d be comfortable showing in public.

Follow Policy Regarding: Late entries, Legible charting, Record confidentiality, Blank lines, Approved abbreviations, Co-signing, Patient refusal of treatment.

©2011 Sweet Law Firm

Charting and Litigation Once litigation starts, don’t add information to record.

Attorneys use handwriting experts and computer forensics experts to determine when time entries made. Computer charting indicates a time stamp of when

entry is actually made. If you suspect that another care giver made illegal

changes, notify supervisor. Do not change your notes if requested to do so by a

colleague without consultation with a lawyer. Your communication with a lawyer is protected by

privilege. Evidence of tampering is illegal and will cause the

entire medical record to be inadmissible in court. SPOLIATION is the beginning of the end. You can’t defend a chart that has been altered or

tampered with. You subject yourself or your organization to punitive

damages and possibly more serious penalties by your licensing agency.

©2011 Sweet Law Firm

Charting and Litigation

continued

Subject to charges of falsification and fraud if documented care not provided.

Be careful of what is ICD 9 coded or billed. If you billed for something that is not done, it will

come up. If you failed to document something, but it is

reflected in the bill, that is useful but is a poor substitute for documenting in the chart.

Do not assume that the nurse will bail you out with their charting.

Do not assume that the physician will bail you out with their charting.

Does facility use charting by exception (CBE) format. If so, follow flow sheets and forms closely. If you use CBE, make sure there is not an

inconsistent policy on documentation. Be objective when charting non-compliant behavior by

patient.©2011 Sweet Law Firm

Notifying the Physician

The most important phone calls you will ever get or make. Lawyers and experts make a living criticizing these

contacts. Take these calls seriously. Phone consults between nurses and attending physician

can be the most important aspect of most OB lawsuits.

If a change in status warrants notifying the physician, must be able to communicate essential information.

Communication is more difficult by telephone than in person.

When communicating by telephone, communicate in a logical and organized way that creates a “picture” to the physician. ©2011 Sweet Law Firm

Notifying the Physiciancontinued

With an on-call physician, summarize background before describing problem.

Organize data before physician contact is as follows: Be clear about why you’ve called, rather than

giving a list of findings for physician to interpret.

Give the pertinent facts that are related to the issues:

Change in condition, prolonged labor, failure to progress, problems with strip, complaints of patient.

When talking to physician, chart the details of your message and the physician’s response, i.e., time, details, response, orders or not, etc. This protects both the nurse and the physician.

©2011 Sweet Law Firm

Incident Reports: Attracting sharks with blood in the

water! Never reference in the patient’s chart that an

incident report was filled out. Never place the incident report in the patient’s

chart. Never write an order for someone else to fill out

an incident report. Never use extra paper! If you need another

piece of paper to report everything fully, you are divulging too much. Tear it up and start over.

Be Sgt. Joe Friday: Just the facts. Should ideally be completed by the person

most closely involved with the incident.©2011 Sweet Law Firm

What gets us sued? Statements to patients and their family.

Bedside manner. Or, lack thereof.

Not returning phone calls.

Misdiagnosis.

Failure to manage expectations of both patient and family.

Informed Consent (responsibility of physician, not the nurse).

Illegible handwriting:

May result in medication errors, misunderstanding of orders and it makes you look bad to a jury.

Fighting in the chart.©2011 Sweet Law Firm

VBAC’s Consent, consent and consent! Consent should be detailed with the risks, complications and

alternatives to treatments. The consent should reference a conversation directly between

physician and patient.

Consent is legal duty of physician, not anyone else.

Complications: Uterine rupture risks, bladder lacerations, adhesions, hysterectomy,

incontinence, etc. Discuss these with your patient. Put it in the chart, write patient a letter.

Chart previous VBAC’s. If possible, obtain the prior records.

Hospital should make sure there is ample OR space and Anesthesia coverage.

Pain over epidural should not be ignored.

When contacted that patient is at hospital, don’t forget your laboring patient is a VBAC.

©2011 Sweet Law Firm

Shoulder Dystocia: Abnormal Labor and Fetopelvic

Disproportion Liability concerns prenatal care in the office and issues encountered in the labor and delivery room.

Liability issues: 1. Abnormalities of the powers (uterine contractility and maternal expulsive

effort).2. Abnormalities of the passenger (fetus).3. Abnormalities of the passage (the pelvis).

Williams on Obstetrics21st Edition, page 426

“The greatest impediment to understanding normal labor is recognizing its start”.

Thus, it is a subjective determination that is subject to definitions provided after the fact by expert witnesses.

Failure to diagnose fetopelvic disproportion or any of the other buzz words such as cephalopelvic disproportion.

Failure to timely respond and diagnose failures to progress. You get sued if you don’t do a c-section fast enough. You get sued if you do one too quickly.©2011 Sweet Law Firm

Fetal Heart Strips The Strips are interpreted beyond what they

were ever intended to do. Take Fetal Heart Strips seriously. Fetal Heart Strips tell a big story to the jury.

Do not overly rely upon Fetal Heart Strips as a source of charting.

Still make notes on what your reaction is to the strip.

Let the jury know that you were reading it and what your thought process was.

This is helpful to show that you were involved in the labor, not just showing up to play catch the baby and cash the check.

©2011 Sweet Law Firm

If YOU are being sued

Do not talk to ANYONE: This includes nurses, attending physicians,

friends, family members of patients and NEVER talk to a lawyer for the patient or

family.

Do not give a statement. You may be recorded.

In Oklahoma, you do not have to give your permission in order to be recorded.

DO call Risk Management. DO notify your Insurance Carrier.©2011 Sweet Law Firm

AMA and Perinatal Safety Bundles

The AMA published an article (June 16, 2008 Amednews.com) describing a growing trend amongst hospitals to implement recommendations of the Joint Commission and the Institute for Healthcare Improvement to eliminate preventable birth trauma.

Target: OB/GYN’s and hospitals. 3 in 1,000 deliveries result in serious perinatal injuries that

can result in CP, birth asphyxia or permanent neurological disability.

Initiative seeks to have “bundles”, or groups of related interventions shown to reduce harm when performed in concert, based on clinical practice guidelines from ACOG and AWHONN. (Association of Women’s Health, Obstetric and Neonatal Nurses).

“Bundling” Defined: Implementing ACOG guidelines as steps that, when performed together as related interventions, attempt to eliminate negative outcomes in deliveries.

©2011 Sweet Law Firm

AMA and Perinatal Safety Bundles continued

Example of a Bundling: When using Pitocin to induce labor, the doctor will:

Assess gestational age, ensuring that it exceeds 39 weeks; Monitor fetal heart rate for reassurance according to specific definitions

developed by the National Institute for Child Health and Human Development;

Assess pelvis to determine dilation, effacement, station, fetal presentation, and cervical position and consistency;

Monitor and manage hyperstimulation and respond according to a predetermined consensus plan.

Problem: Communication. According to a 2004 report by the Joint Commission on Accreditation of

Healthcare Organizations (JCAHO), approximately 72 percent of perinatal sentinel events/incidents creating serious patient harm or the potential for serious harm are rooted in communication breakdowns.

Issue: Nurses are being directed by policy and procedure to shut off Pitocin in the event of certain circumstances without an order from a physician.

Communication is the key. Documenting the communication protects everyone. Despite a policy and procedure directing a nurse to take an intervention,

the physician must be contacted and informed. DO NOT ASSUME that the physician knows about this policy.©2011 Sweet Law Firm

Q & A

©2011 Sweet Law Firm

Sweet Law Firm414 N.W. 4th Street

Suite 150Oklahoma City, OK 73102

405-601-9400405-684-0900 cell

Kyle@Sweetlawfirm.com

Thank you!