Claims allege failure to follow guidelines
Executive Summary
Plaintiff attorneys often use guidelines to establish the legal standard of care. If physicians don’t follow guidelines, their documentation should clearly explain the reason for not doing so.
- Good documentation of why the guidelines weren’t appropriate can make claims more defensible.
- Physicians should tell the patient or family why the guidelines do not apply in this particular instance.
- Physicians should be aware that The Joint Commission standards have been cited by plaintiff attorneys to identify an alleged breach of the standard of care.
If physicians fail to follow guidelines, plaintiff attorneys can use this to support their argument that the standard of care was breached.
"Physician who had good documentation explaining the reasons for not following the guidelines have a better chance of defending the care than physicians who do not have this documentation," says Anna M. Grizzle, JD, an attorney at Bass, Berry & Sims in Nashville, TN.
Medical providers often have good reasons for not following guidelines, such as the patient’s condition being a contraindication for doing so. However, these reasons often aren’t documented, says Grizzle.
"Clear documentation of the provider’s thought processes keeps the provider from being second-guessed after the fact," she says.
More physician groups, hospitals, and accountable care organizations (ACOs) will be adopting standardized approaches to delivering care, in which deviation from the accepted standard would be expected to be documented as to why, says Alice G. Gosfield, JD, a Philadelphia-based healthcare attorney.
"If physicians are aware of the guideline, they should document why they are deviating from it in this instance," says Gosfield. For example, a physician might chart, "Discussed doing an ultrasound, but the patient does not want it at this time," or "Have prescribed a different drug because the patient has a known intolerance to the recommended drug."
Explain reasoning
At times, for whatever reason, guidelines are not applicable to every patient situation, says Franchesca J. Charney, RN, director of educational programs at the Pennsylvania Patient Safety Authority in Harrisburg.
"In these circumstances, there has to be documentation of awareness of the guideline and why the guideline is not being followed for this patient," says Charney.
The documentation also will serve as a reference for other care providers on what factors made this an acceptable decision for this patient at this time, she says. Charney says good documentation includes: the guideline recommendation, the reason why it is not being followed, and the patient or family’s understanding of why the guidelines do not apply in this particular setting.
At times, patients confided to Charney that they filed a claim simply because they wanted to know what happened. "If we, as care providers, communicate to patients and families more effectively, would we see less claims?" she asks. "I believe we would."
