The importance of documentation in health care

Role of Documentation in Malpractice Litigation –

Lessons Learned from a Recent Trial Experience

March 24, 2014

Cindy Clarke, Partner, Health Law GroupBorden Ladner Gervais LLP

[email protected]

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Overview of Session

1. Importance of Documentation – Legal Perspective

2. Documentation in a Lawsuit – Clinical Perspective

3. Questions and Answers

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Why is documentation important?Healthcare perspective

1. Communication

2. Chronology of care

3. Accessible information

4. Accountability for actions

• Civil litigation

• Coroners’ Inquests

• Human Rights complaints

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Why is documentation important?Legal Perspective

DOCUMENTATION

IS

EVIDENCE

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What documents are we talking about?

Medical Malpractice action:

• Full chart

• Medication record

• Schedules

• Appointment papers

• Employment file/reviews

• Policies and procedures

• Internal notes and memos regarding the event

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How is documentation used in a legal action?

Documentation = Evidence

• Plaintiffs use it to prove that the standard of care was breached(i.e. someone administered the wrong dose of medication)

• Defendants use it to prove that the standard of care was met (i.e. care that was required to be provided was provided)

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Use of Documents in a Legal Case

Plaintiffs use it to:

• Point to lapses, errors, amendments, deletions, inconsistencies and vague entries as evidence of breaches in the standard of care

• Draw inferences and conclusions of sub-standard practice

• Provide to experts to obtain critical opinions

• Rely on as evidence at trial against the health care providers

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Defendants use it to:

• Review and prepare a defence to the allegations made by the Plaintiff

• Show that there were no lapses, errors, inconsistencies or vague entries

• Counter inferences and conclusions and show standard of care was met

• Provide to experts to obtain supportive opinions

• To use as evidence at trial in the defence of health care providers


• Used to piece together detailed chronology of events related to the incident in issue in the case

• Refreshes memory of care providers as many lawsuits not started until years after the events occurred

• Foundation of your defence

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Comments on Recent Malpractice Decision

Facts

• Patient attends hospital for clipping of aneurysm. Surgery successful

• As improves moved to neuro-surgery step-down unit

• 10 days later, patient showed signs of deterioration. Agency nurse was assigned to cover patient that day

• The plaintiffs claimed the deterioration, and resulting clinical outcome, was connected to the care received

Sozonchuk v. Polych, 2011 ONSC 842 (CanLII)

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• Just prior to trial, the Hospital settled the family’s claims. There were concerns the nursing care contributed to the deterioration and poor outcome.

• Case against physicians was dismissed as it was clear their conduct had not caused or contributed to the deterioration

• This left a hospital and a nursing agency involved in the case. They went to trial to determine who was responsible for the outcome.

• Agency claimed its nurse had no role so it should not contribute any money to the settlement with the plaintiffs


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• The Hospital claimed a 50% contribution from the agency nurse’s employer.

• One particular shift that was critical in the timeline. The hospital’s experts opined that during that shift the patient deteriorated. If the deterioration had been identified, interventions could have been offered to avoid or ameliorate harm to the patient

• Hospital claims the agency nurse failed to identify the deterioration when she should have done so

• Agency claimed the hospital nursing staff failed to properly follow up on concerns brought to their attention by agency nurse


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• This case exemplifies why proper documentation is critical.

• Due to the severity of Mr.S’s condition, numerous care givers were involved, although on the day in question agency nurse was the primary care nurse in his care

• The events that transpired involved a lack of documentation, failure to remember the details after the events, inconsistencies and one nurse’s word against the other

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• Judge concluded inaccurate information was entered in record as numerous errors were identified

• In many instances where there was NO documentation at all pertaining to important medical information regarding the care

• The Judge concluded that there was a breakdown in communication between caregivers. (Proper documentation would have proved helpful!)

• There were inconsistencies in verbal and narrative notes and testimony

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Findings of the trial judge….

• Both the nurses (agency & hospital) breached their respective duties of care to the patient and thus contributed to the resultant neurological injury

• Both employers (hospital and agency) were held vicariously liable for the actions of their employees

• Judge unable to rely on evidence provided by either nurse concerning the events. He could not determine the degree of fault between them.

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• Section 4 of the Negligence Act provides that where it is not practicable to determine the respective degrees of fault or negligence as between any parties to an action, such parties shall be deemed equally at fault or negligent

• Judge applied that approach.

• Hospital and agency required to pay 50% of the damages owing to the plaintiffs

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Why good charting is important?A lawyer’s perspective

“Documentation is Evidence” and…

• Lawsuits may not arise for years after the event – memories lapse

• The chart is your evidence (Ares v. Venner)

• Timely, accurate records are essential in establishing quality care provided

• Discrepancies and inaccuracies will be used to discredit

• Your documentation is your best defence!

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• In the recent case judge noted that accurate and timely record keeping in patient care and especially in hospital critical care is extremely important

• “The absence of contemporary recordings of important events in the care of a patient gives rise to the interference that the events simply never happened. See Kolesar v Jeffries (1974),9 O.R.(2d)

41 (S.C.O.)” (see para 91)

• In this case the judge found the agency nurse’s personal notes to be self serving and of no assistance, other than to highlight, the deficiencies in the medical records.


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Comments Re: Charge Nurse

• Nurse owed duty to help ensure patient’s needs were met

• When working with agency nurse need higher level of attention due to lack of familiarity with specific environment

• Failed to contact doctor when asked to do so

• If nurse pages a doctor she has responsibility to keep track of the paging to ensure it is answered

• Because Mr.S was stable and Nurse P had critical care experience and had worked on that unit before there was no breach by assigning Nurse P to Mr.S

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Comments Re: Agency Staff

• If trained, experienced nurse is expected to perform at that level even if working with regular employer.

• “ Nurse P ought to have identified hemiplegia long before she did”

• “Record keeping was inconsistent, incomplete, inaccurate in many cases and often not timely.”

• Failure to inform physicians of Mr. S’s deteriorating condition was a breach of duty to advocate .

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Bottom Line

No matter what type or kind of charting is used,

anyone reviewing the chart MUST be able to determine what transpired!

Example of Comments from Judge in Recent Malpractice Decision

• If Nurse P had the concerns she testified to in respect of Mr. S’s condition during the morning of October 17, 2003, one would expect them to have been documented by her in the record. Further, if she was consulting with Nurse B and relying on her assistance and direction, she should have documented that as well.

• As noted, accurate and timely record keeping in patient care and particularly in a hospital critical care ward is extremely important. The absence of contemporary recordings of important events in the care of a patient gives rise to the inference that the events simply never happened. See: Kolesar v. Jeffries1974 CanLII 664 (ON SC), (1974), 9 O.R. (2d) 41 (S.C.O.)

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Bottom Line

Must be able to determine:

1. What happened

2. To whom it happened

3. By whom it happened

4. When it happened

5. Why it happened

6. The result of what happened

Documentation should be in a manner that prevents or deters alteration of the record.

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Essential Elements in Charting

•Time

•Date

•Event - all pertinent information

•Name and signature of h.c.p.

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Problem Areas Commonly Seen:

Not Recording at Time of Event

• Contemporaneous charting is best if possible

• Long delays create negative inferences

• Timely charting is more reliable

• Flow sheets can assist in timely documentation

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Problem Areas:

Recording Someone Else’s Actions

• Record only what you saw, heard or did

• Poor practice to record the actions of another health care provider

• Not able to testify as to truth of event, because no personal knowledge

• Are situations where this charting is required (students/resuscitations) but recommend that you document that you made note but “Jane” completed action

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Problem Areas:

Recording Out of Chronological Order

• Confusing to understand what healthcare was provided

• Leads to inferences of “CYA” charting after the fact

• Important for healthcare perspective too

• Creates a clear picture of care if chronological

• Facilitates better communication

• If unable to record all at time, do not leave blanks in the chart

• Record late entry as such and include date/time of recording as well as date/time of event

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Problem Areas:

Recording Inaccurately and Incompletely

• Accuracy is essential – for both medical and legal reasons

• Record should included assessments, identification of health issues, plan of care, implementation and evaluation

• Consents and risk disclosure should also be documented. This rests with the physicians and the nurses

• The minutes matter! The details matter!

Case Example – Physician Documentation

• Patient was prescribed Gentamycin for the first time

• Patient came to suffer from Gentamycin toxicity

• Prescribing physician sued for failure to adequately warn regarding the risks and availability of other options

• Physician claimed had discussed risks with patient but could not point to any documentation in the record to confirm the discussions

Van Dyke v. Grey Bruce Regional Health Centre, 2003 CanLII 40159 (ON SC)

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• Dr. M testified that he had ongoing discussions with Mr. VD about the risks and side effects of Gentamicin despite the fact that he kept no record of these discussions.

• Dr. M during cross-examination admitted that he was under duty, by the law and by his professional code of conduct, to record the discussions he had with Mr. VD regarding Gentamicin ototoxicity.

• Although he recalled generally having had such discussions he could not recount specifically the content of those discussions, nor when these discussions might have place.

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Judge held:

• I am satisfied on the evidence that there was a failure by Dr. M to properly document discussions with the “treating team of physicians” and with Mr. VD.

• Although the failure to keep proper records in this case does fall below the standard of care, the failure, in and of itself, does not constitute negligence here. However, as stated above, I am unable to accept that certain critical discussions took place with the other doctors and with Mr. VD when there is no written record of such discussions.

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• There was nothing in the medical record or in the evidence to support a finding that Dr. M discharged his duty to adequately inform Mr. VD about the risk of ototoxicity and the symptoms.

• There was nothing to suggest that it had been brought home to Mr. VD that if he experienced any of those symptoms he was to report it to medical personnel immediately.

• Dr. found negligent as Mr. VD he did not appreciate urgency to report symptoms of toxicity

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Problem Areas:

Hospital Implementation of Untenable Policies

• Medical practitioners are not the only ones with responsibilities in charting

• Pursuant to the Public Hospitals Act, Hospitals have a duty to ensure proper charting is completed

• Ensure departments have reasonable policies and clear standards of acceptable practice

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Practice Tip for Supplementing Charting:

Development of a Standard Practice

• One way to protect yourself is to develop a “usual” practice to rely upon when your memory fails

• Each of you has practices of your own – make sure they are in line with proper standards and will protect you

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Miscellaneous – Incident Reports

Preparation of Incident Reports

• Used as evidence of hospital’s first investigation into incident

• Words chosen can be used to prove responsibility

• Stick to facts and avoid accusations

• Will be produced if facts aren’t in patient’s chart

• These types of reports are generated in the ordinary course of business so will be produced

• These are distinct from a report on a quality investigation

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Miscellaneous – Personal Notes

Preparation of Personal Notes:

• Often staff will jot down personal notes after an incident and tuck them away “in case something happens”

• If a lawsuit is started about the incident, the notes will have to be produced to the other side

• There is no protection for them and most often the notes are laden with opinions and accusations

• In example from beginning - Nurse P’s own notes were found to be inaccurate and inconsistent

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Final Thoughts

• Have professional obligations to document and chart appropriately

• Importance in health care context cannot be over-emphasized

• Communication, continuity, accountability

• Legal ramifications is another reason to ensure charting and documentation is appropriate

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THANK YOU!

CINDY CLARKE

Tel:(416) 367-6203

[email protected]

The importance of documentation in health care

Health & Medicine

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