A recent malpractice case involved a patient who presented to an ED after a softball struck the patient in the head.
“Entries in the chart by various care providers made it difficult to pinpoint symptomology,” says Aaron Hamming, JD, risk resource advisor, ProAssurance Companies.
One provider noted onset as sudden and acute, while another noted symptoms evolved gradually.
“In various other parts of the record, the patient was recorded upon arrival as not in acute distress, in pain distress, comfortable, and pain as nine out of 10,” Hamming says. The patient was recorded as having abdominal pain and denying abdominal pain. “This, and other inconsistencies and contradictions, took a case that was initially viewed as extremely defensible and made it challenging,” Hamming says.
Ultimately, the jury returned a verdict in favor of the EPs, whose care was almost unquestioningly appropriate.
“But it was a difficult defense because the record made it difficult to show that level of care,” Hamming explains.
In another malpractice case, nursing notes described the patient’s “headache and blurred vision,” but the EP’s template indicated “vision normal.” The patient ended up with temporal arteritis and blindness in one eye. The lawsuit against the EP settled for $200,000.
Nursing notes were also a key issue in a malpractice case alleging that the EP misdiagnosed a myocardial infarction as bronchitis. The triage nurse’s note indicated “fever and chest pain.”
“There was no documentation in the chart that the EP addressed the chest pain noted in the nurse’s notes,” says John Davenport, MD, JD, physician risk manager of a California-based HMO.
Conflict with documentation of other providers is a “common but avoidable area of ED risk,” Davenport says. Here are two common examples:
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ED nursing notes that include abnormal vital signs that are not addressed in the chart;
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Nursing discharge notes describing a condition contrary to the EP’s assessment.
“With the implementation of the EMR, and the use of templates or macros, these are becoming more common, and risk affecting the credibility of the physician,” Davenport says.
Sloppy, Rushed Appearance
A skillful plaintiff attorney uses discrepancies in charting to argue that the EP failed to appreciate a crucial symptom or an important historical fact when evaluating or treating the patient, says Judy Greenwood, Esq., a Philadelphia-based medical malpractice attorney.
“This is particularly true where the nurse’s note is more comprehensive,” she says, noting the EP’s failure to include pertinent findings is used to suggest the EP was sloppy or rushed in his or her approach. “A mismatch in the documented information can suggest a breach of care.”
The defense of a malpractice case turns on a narrative: what occurred, how and when it happened, and why it all conformed with the standard of care, says David S. Waxman, JD, an attorney in the Chicago office of Arnstein & Lehr.
That defense can quickly unravel if inconsistent reporting of material elements undercuts the narrative.
“When a doctor and a nurse report on an event inconsistently, the physician’s ability to tell her story, or set the narrative, is jeopardized, with potentially significant consequences,” Waxman says.
A significant element of a narrative is the timing of events.
“Nothing is more damaging to a physician’s story than to have a nurse chart that the physician was still present 15 minutes after the physician charted a shift change, or that an intubation was performed 7 minutes after a physician charted that it had been performed,” Waxman says.
Inconsistencies on how much pain the patient is experiencing also come up frequently in malpractice litigation. The EP may chart that a patient is “stable with pain controlled,” while the nurse records the patient’s self-report of pain as 10 on a scale of 1 to 10.
“When that patient is later found to have an epidural hematoma with neurological sequelae, the doctor’s defense has obviously been compromised,” Waxman explains.
Acknowledge Other Views
Hamming says EPs need to think about the medical record “holistically.”
“Too often — and EMRs are partly to blame — we see charts that are overly compartmentalized by section or responsibility,” he says.
Inconsistencies in charting can be used to instigate ED providers into criticizing the care of other members of the care team.
“One way to combat this is to view the records as interrelated and interconnected,” Hamming says.
EPs should be aware of what others are observing and documenting in the medical record.
“This does not mean that all providers must be in lockstep agreement about all aspects of the patient’s care,” Hamming says.
Rather, EPs should review and acknowledge other views and reports as part of their clinical evaluation, “as much as is reasonably practicable,” Hamming says. “If a finding is different or inconsistent, it is OK to document that and include interpretation or discussion.”
EPs might chart, for instance, that the patient’s symptoms evolved, and that more studies or additional consultations are now needed.
“It can strengthen the defensibility of claims when the record shows a connection from a prior, inconsistent finding to the current one,” Hamming says.
SOURCES
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John Davenport, MD, JD, Irvine, CA. Phone: (714) 615-4541. Email: [email protected].
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Judy Greenwood, Esq., Law Offices of Judy Greenwood, P.C., Philadelphia. Phone: (215) 557-7500. Fax: (215) 557-7503. Email: [email protected].
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Aaron Hamming, JD, Risk Resource Advisor, ProAssurance Companies, Okemos, MI. Phone: (517) 347-6292. Fax: (517) 349-8977. Email: [email protected].
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David S. Waxman, JD, Arnstein & Lehr, Chicago. Phone: (312) 876-7867. Email: [email protected].
