Lessen your path-related liability concerns
Three keys to avoid liability "hot spots"
By Patrice Spath, ART
Consultant in Health Care Quality and Resource Management
Forest Grove, OR
(Editor's note: In the August issue of Hospital Peer Review, Ms. Spath answered many frequently asked questions about the legal risks. This month she examines important strategies for reducing path liability concerns. The right path development and implementation tactics can minimize malpractice fears.)
Clinicians commonly question the wisdom of writing down patient care expectations because they fear such documentation will later be used against them in a court of law. And it's true. Caregivers and the organizations in which they work are held accountable by the courts for their actions. Physicians have long been held responsible for their actions in the care for patients. The Hippocratic Oath, circa 400 B.C., and the Code of Hammurabi, written more than 1,600 years earlier, holds physicians accountable for injuries they may cause to their patients.
When taking the Hippocratic Oath, a physician swears to refrain from intentionally harming his or her patients. When physicians are shown in a court of law to have caused patient harm by acting in a manner that is not consistent with common medical practice, they assume financial liability for their actions. Health care organizations also have a legal duty to patients. It is now generally recognized by the courts that facilities owe a duty to:
* supervise and manage both hospital employees and the medical staff;
* select competent physicians and ensure their continued clinical competence;
* provide and maintain adequate facilities and equipment;
* provide a safe working environment;
* Maintain appropriate standards of patient care;
Clinical paths are a relatively new patient management tool. Because of this, paths are the subject of new liability concerns. However, it's important to remember that a clinical path is not unlike documents that have been found in patient records for many years, such as standing orders, nursing care plans, and protocols.
It is unlikely that clinical paths, an amalgamation of these various documents, will add any new liability concerns. However, like any new patient management tool, it's important that clinicians take appropriate steps to minimize their malpractice exposure. Three elements of the organization's clinical path initiative can be potential liability "hot spots" -- path development, how caregivers use the path to direct patient care, and how caregivers respond to path variances.
Path development and design
When designing your paths, closely review relevant published practice guidelines from all professional disciplines involved in the patient's care. Don't just develop a path based on the "way we've always done it" -- you may find yourself sued for following obsolete medical practices or for deviating from nationally recognized, evidence-based guidelines.
The path recommendations should be neither excessively stringent or overly permissive. If there is truly more than one acceptable treatment plan, then make those choices available to the practitioners. Don't compromise when there is sound medical evidence to support one treatment protocol over another.
Focus on patient outcomes, not just on reducing costs. In general, the law is flexible and tolerant of institutional variations in medical practices. But if you appear to have deviated from community standards in order to save money, rather than ensure quality patient care, juries will be less tolerant of variation.
The path should be viewed as a guide, not a standard of care that must be followed for every patient -- thoughtful deviance is encouraged. Many organizations print a "disclaimer" on their paths to clarify the intent, such as:
* This critical pathway has been developed to serve as a guideline for the "optimal" management of patients hospitalized primarily for the above noted diagnosis or procedure without complicating comorbidities.
* This care path is a guideline and is not intended to create a standard of care. This guideline may be modified based on the individual patient's need.
* This protocol is a general guideline and does not represent a professional standard of care governing providers obligations to patients. Care is revised to meet the individual patients needs.
* These clinical guidelines are designed to assist clinicians by providing an analytical framework for the evaluation and treatment of patients and are not intended either to replace a clinician's judgment or to establish a protocol for all patients with a particular condition. A guideline will rarely establish the only approach.
All caregivers affected by the path should have the opportunity to comment, revise, and approve the content. Every practitioner should be given a copy and provided with updates. New staff should be required to review relevant paths and copies should be available. When new physicians are added to the medical staff, they should review and comment on paths that affect them. New nurses, technicians and other bedside caregivers should be familiarized with all relevant paths during their orientation.
The content of your paths should be reviewed and approved just like any other standardized protocol, care plan, or patient management tool. For example, if the medical staff's critical care committee is the group responsible for reviewing and approving special care unit procedures and protocols, they also should comment on the content of paths used in special care units. If your nursing standards of practice are reviewed and approved by a nursing department committee, they should review and approve path content in the area of nursing. Your liability exposure will be minimized if the organization can prove that it consistently applies the same approvals process to all patient care management tools.
As a part of the path development process, ask the design team to establish a schedule for revisiting the path content. Many organizations require annual re-evaluation of the path content. When clinicians perceive the state-of-the-art to be advancing quickly in a particular patient management category, they should establish a more frequent evaluation schedule.
Someone such as the risk manager or the quality manager should also be watching for newly published guidelines that might affect the content of your paths. Path content should automatically be reevaluated when new clinical practice guidelines are issued by a medical professional group.
Use by caregivers
Because the physician owns the ultimate liability for all patient care activities, it's important to involve the admitting physician in the decision to place their patients on a path. This is especially important if the clinical path includes physician-directed elements of care and placing a patient on a path empowers caregivers to perform certain tasks without a corresponding physician order. How this physician involvement occurs may be influenced by each organization's medical staff bylaws, rules, and regulations.
In general, physician involvement can occur in several ways:
* Physicians agree to have all their patients placed on a path at the time of admission (get this in writing or documented in committee minutes). This is a blanket consent, much like standing protocols.
* Physicians sign the clinical path (similar to how standing orders for intensive care and critical care units are used).
* A written physician order is required to place a patient on the path.
From a liability standpoint, it's important the organization ensure that the same standard of care is applied to all patients, regardless of where they receive treatment or who the caregivers are. Not all physicians may wish to put their patients on the path -- that's OK. However, be sure to monitor the medical practices and outcomes of those "nonparticipating" physicians to ensure that all patients are receiving the same level of quality whether or not they are on a path. If patients with the same diagnosis are treated in different units in the facility, each of the units should be using the same path.
Red flag areas
If the clinical path is not maintained as a permanent part of the record, keep archive copies of each version of the path and the dates each version was in use. Just like a policy or procedure, you'll want to know which path was in effect when a particular incident occurred. If the caregivers chart against the path recommendations, the plaintiff's attorney may request a copy of the path which was being used at the time. Some organizations code each path version to avoid confusion as paths are revised.
If the path is maintained as a permanent part of the patient's record, be sure clinicians consistently comply with the documentation standards. Examples of documentation content that increases legal risk1:
* The content does not reflect patient needs.
* The content does not include description(s) of situations that are out of the ordinary.
* The content overgeneralizes patient assessment or nursing interventions.
* The content is not timely or is chronologically disorganized.
* The content is incomplete or inconsistent.
Missing documentation in a patient chart is a red flag for lawyers. Opposing lawyers will suggest that gaps in documentation signify gaps and omissions in care. Remember, the clinical path is the plan of care -- not caregivers' reaction to the plan of care. Flow sheets, progress notes, and other forms must be used to document caregivers' reactions.
Responding to variances
Important path variances should prompt immediate intervention. The hospital has a duty to maintain appropriate standards of patient care. When care varies from that standard, someone should intervene before an untoward event occurs. Ask the path design team to identify critical elements of care that require concurrent intervention. Define who is responsible for reacting to important variances and then periodically monitor to be sure it's happening.
When goals are not met or interventions are not performed according to the expected time frame (variances to the path), a brief explanation of these exceptions should be documented1:
* the unexpected event;
* the cause for the event;
* actions taken in response to the event.
This documentation must be an objective description of the circumstances surrounding the event -- don't document subjective remarks or accusations in the patient's record. Some organizations use a separate form (not part of the patient's record) to document variances. Others maintain variation documentation as a permanent part of the patient's record, which is consistent with charting by exception models.
Patterns of significant path variances should be analyzed. You don't need to collect information about all variances -- only variances from path recommendations that are based on good guidelines. The quality of the evidence for a path recommendation should influence what variances are measured.2
The 1973 court case, Gonzales v. Nork and Mercy Hospital, taught us that hospitals can be held liable for breach of duty to the patient when they fail to protect the patient from physician's negligent acts. If the hospital knows or should have known about the negligent acts of a caregiver but fails to act, it can be held liable for breach of duty. Therefore, be sure to know if there is a pattern of variances from accepted standards of care.
Don't let unsubstantiated legal fears about clinical paths cloud the real issue. Physicians and other clinicians must document their patient care decisions, rationale for making these decisions, and the condition of the patient during treatment. Any patient record that lacks these components (whether or not a clinical path is part of the chart) will compromise the provider's legal position in the event of an untoward patient event.
Reference
1. Eggland ET, Heinemann DS. Nursing Documentation: Charting, Recording, and Reporting. Philadelphia: J.B. Lippincott Co.; 1994.
2. Spath P. Mastering Path-Based Patient Care. Forest Grove, OR: Brown-Spath & Associates; 1995. *
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