Nursing and the Law: “Documentation & Nursing Malpractice, Are You Protected?” Presented by CARTHENIA W. JEFFERSON, RN, CNN, ESQ. JEFFERSON LAW FIRM, LLC th Avenue North Suite 300 Birmingham, Alabama Phone: Fax:

DISCLAIMER: This presentation is to inform you of your potential liability exposure in the nursing practice. It reflects general principle information only. It is not to be construed or intended to offer legal advice. Should you need legal advice or have specific concerns, please consult with an Attorney. Neither the Jefferson Law Firm, LLC, Nurses Service Organization, or CNA insurance companies assume any liability for how this information is applied in practice or the accuracy of this information. The CNA professional liability insurance for nurses is underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. CNA is a registered service mark and trade name of CAN Financial Corporation. This presentation was published in part by information from Affinity Insurance Inc. Healthcare Providers Service Organization is a division, and Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc This presentation is to inform you of your potential liability exposure in the nursing practice. It reflects general principle information only. It is not to be construed or intended to offer legal advice. Should you need legal advice or have specific concerns, please consult with an Attorney. Neither the Jefferson Law Firm, LLC, Nurses Service Organization, or CNA insurance companies assume any liability for how this information is applied in practice or the accuracy of this information. The CNA professional liability insurance for nurses is underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. CNA is a registered service mark and trade name of CAN Financial Corporation. This presentation was published in part by information from Affinity Insurance Inc. Healthcare Providers Service Organization is a division, and Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc

NURSING AND THE LAW: “Documentation& Nursing Malpractice, Are You Protected” OBJECTIVES OBJECTIVES Increase awareness concerning Nursing Malpractice. Increase awareness concerning Nursing Malpractice. Increase awareness of risks, specifically targeting exposure to nursing negligence and malpractice, i.e. documentation. Increase awareness of risks, specifically targeting exposure to nursing negligence and malpractice, i.e. documentation. Enhance the quality of documentation by expanding awareness in order to provide quality patient care and avoid malpractice incidents. Enhance the quality of documentation by expanding awareness in order to provide quality patient care and avoid malpractice incidents. To address the documentation steps in order to implement, and thus protect your patient from harm and minimize your liability exposure. To address the documentation steps in order to implement, and thus protect your patient from harm and minimize your liability exposure. Increase awareness of nurses being protected with their own insurance policy, esp. if working contract. Increase awareness of nurses being protected with their own insurance policy, esp. if working contract.

WHAT IS MALPRACTICE? Malpractice is professional misconduct in the performance of professional services that results in liability for negligence and damages. Malpractice is professional misconduct in the performance of professional services that results in liability for negligence and damages. Negligence is a form of conduct that falls below the Negligence is a form of conduct that falls below the professional standard of due care”. The standard of care is established by the average reasonable nurse practicing in the same or similar circumstances and delivering care ro the same or similar patient. The standard of care is established by the average reasonable nurse practicing in the same or similar circumstances and delivering care ro the same or similar patient.

ELEMENTS OF MALPRACTICE Duty Breach Causation Damages

NURSING MALPRACTICE Who can be sued? Who can be sued? Which Nurses are sued? Which Nurses are sued? Why are Nurses sued? Why are Nurses sued? What allegations are asserted against Nurses who are sued? What allegations are asserted against Nurses who are sued? When are Nurses sued? When are Nurses sued? Where are Nurses sued? Where are Nurses sued? What are the actions necessary to prevent litigation? What are the actions necessary to prevent litigation?

Nursing Actions to Prevent Malpractice Risk Management Techniques Risk Management Techniques Effective Communication Effective Communication Quality Documentation Quality Documentation Compliance with state Nurse Practice Acts Compliance with state Nurse Practice Acts Adherence to Policies and Procedures Adherence to Policies and Procedures Appropriate, timely and accurate Incident Reporting Appropriate, timely and accurate Incident Reporting Maintaining patient confidentiality through Confidentiality Protocols Maintaining patient confidentiality through Confidentiality Protocols

Three Powerful Tools to Combat Malpractice Documentation, Communication and Reporting; The medical record is important is a medical malpractice case. Documentation, Communication and Reporting; The medical record is important is a medical malpractice case. It is considered a legal document and identifies all patient care. It is the primary method of communication among members of the healthcare team. Risk Management/Quality Assurance Risk Management/Quality Assurance Malpractice Insurance Malpractice Insurance

The First Effective Tool: 1. Documentation, Communication & Reporting

STOP STOPDOCUMENT LOOK LOOKDOCUMENT LISTEN LISTENDOCUMENT

Legal Perspective on Documentation Not documented, not done. Not documented, not done. Poorly documented, poorly done. Poorly documented, poorly done. Incorrectly documented, fraudulent. Incorrectly documented, fraudulent.

Quality Documentation is Quality Care Structured writing typically inspires structured performance. Structured writing typically inspires structured performance. Document the Nursing Process: Document the Nursing Process: Assessment Assessment Diagnosis Diagnosis Planning Planning Implementation Implementation Evaluation Evaluation

DOCUMENTATION According to the Wound, Ostomy & Continence Nurses (WOCN) Society standards of care: The patient should be holistically addressed, assessing the skin risk potential using a valid tool. The patient should be holistically addressed, assessing the skin risk potential using a valid tool. Nutritional status should be addressed. Nutritional status should be addressed. The need for speciality devices like support surfaces should be determined. The need for speciality devices like support surfaces should be determined. Referrals to another medical speciality practice such as a dietitian should also be included. Referrals to another medical speciality practice such as a dietitian should also be included.

You are what you document A well-documented patient care record: Protects your patient Protects your patient Demonstrates to the board of nursing that you are a competent nurse. Demonstrates to the board of nursing that you are a competent nurse. Minimizes the potential of being named as a defendant in a lawsuit. Minimizes the potential of being named as a defendant in a lawsuit. Minimizes the potential of a court appearance if you ARE named in a suit. Minimizes the potential of a court appearance if you ARE named in a suit. Help you win if you go to court. Help you win if you go to court.

Considerations for Quality Documentation  Accurate documentation  Contemporaneous documentation  Record is a Legal Document; patient care record  Basis for Reimbursement  Fraudulent documentation  Inappropriate documentation

Documentation Dos and Don’ts: 10 Risk Management Strategies

Risk Management Strategy 1 Do not erase. Do not use “white out”. Do not cross out an error with more than one line.

Risk Management Strategy 2 Record only the facts. Document only observed behavior. Document healthcare services rendered.

Risk Management Strategy 3 Do not write critical comments. Do not document your opinions.

Risk Management Strategy 4 Begin each entry with the date and time and end each entry with signature and title. Example: (03/31/09 - 7:50AM - Jane Doe, BCCNS)

Risk Management Strategy 5 DO NOT LEAVE BLANK SPACES With EHRs, you need to put something in a blank space, N/A, denies or not observed DO NOT LEAVE BLANK SPACES With EHRs, you need to put something in a blank space, N/A, denies or not observed

Risk Management Strategy 6 Record all entries legibly and in ink.

Risk Management Strategy 7 Avoid generalized phrases such as "bed soaked" or "a large amount."

Risk Management Strategy 8 If an order is questioned, document that clarification was sought and discussed.

Risk Management Strategy 9 Document only your own observations and patient services rendered.

Risk Management Strategy 10 Do not permit any visiting relative or other third-party access to the patient care record.

Communication Challenges Attributes: Factual Factual Accurate Accurate Current Current Confidential Confidential

Reporting Challenges Nurses must communicate information about patients to other nurses and other health care workers. Nurses must communicate information about patients to other nurses and other health care workers. Oral Report –Typically, conducted at change of shift. Documentation/ Written Report –Completed during shift.

Documentation Methods Charting by Exception Charting by Exception FOCUS FOCUS Narrative Narrative SOAP SOAP Electronic Electronic

ELECTRONIC HEALTH RECORDS Be aware that an electronic health record (EHR) of everything you document now exists and you can’t make it go away. Be aware that an electronic health record (EHR) of everything you document now exists and you can’t make it go away. If you have to delete an entry, make sure you accurately explain why you had to delete something in a patient’s HER. If you have to delete an entry, make sure you accurately explain why you had to delete something in a patient’s HER. Be aware of the perils of pasting and copying in the EHR. Be aware of the perils of pasting and copying in the EHR. Avoid using unapproved abbreviations. Avoid using unapproved abbreviations. Make sure your documentation is always objective and doesn't impute negative behaviors or traits to your patient. Make sure your documentation is always objective and doesn't impute negative behaviors or traits to your patient.

The Second Effective Tool: Risk Management/ Quality Assurance

Effective Risk Management Strategies Comply with Nurse Practice Act Comply with Nurse Practice Act Practice Competent Nursing Practice Competent Nursing Comply with Policies and Procedures Comply with Policies and Procedures Follow Appropriate Incident Reporting Follow Appropriate Incident Reporting

Incident Reporting Losses can be reduced by Losses can be reduced by a timely, prudent, a timely, prudent, and compassionate response to an incident!

Learn Your Organization’s Guidelines Patient falls Patient falls Medication errors Medication errors Equipment failure Equipment failure Complaint by patient, family, visitor Complaint by patient, family, visitor Treatment-related injuries Missed/incorrect diagnosis Employee exposures Examples of Reportable Incidents

Report immediately, i.e., within 24 hours. Report immediately, i.e., within 24 hours. Do not speculate. Do not speculate. Do not draw conclusions. Do not draw conclusions. Do not document impressions. Do not document impressions. BE ALERT! Report unusual occurrences Document ONLY the facts

QUALITY MONITORING Participate in investigations. Participate in investigations. Maintain confidentiality of all information. Maintain confidentiality of all information.

The Third Effective Tool: Malpractice Insurance

Elements of Insurance What is Insurance? What is Risk? What is Loss? What Risks should be Managed?

Most Frequent Allegations in Nursing Malpractice Treatment and care management Treatment and care management Assessment Assessment Abuse/patient’s rights/professional misconduct Abuse/patient’s rights/professional misconduct Medication administration Medication administration Monitoring Monitoring

Actions if a Litigation is commenced Provide notice to your administrator as soon as you become aware of a potential claim.

Your Options as a Nurse Assume the Risk Yourself Assume the Risk Yourself Transfer the risk through employer provided coverage Transfer the risk through employer provided coverage Transfer the risk by purchasing your own coverage Transfer the risk by purchasing your own coverage No cost up front If there is a claim you will be paying for it entirely out of pocket No cost up front Might not protect you sufficiently, or protect you against a complaint about you to the Board of Nursing Designed to protect you and only you, with NSO it covers complaints to the Board of Nursing Minimal cost up front

Ten Steps to Prevent Lawsuits Protect the patient Protect the patient Remain current in your professional knowledge Remain current in your professional knowledge Utilize the entire nursing process Utilize the entire nursing process Document comprehensively Document comprehensively Audit your nursing records Audit your nursing records Utilize the skills and competencies you acquired Utilize the skills and competencies you acquired Delegate patient care judiciously Delegate patient care judiciously Know your state nurse practice act Know your state nurse practice act Know your department policy manual Know your department policy manual Show kindness and respect Show kindness and respect

ALABAMA BOARD OF NURSING ADMINISTRATIVE CODE 610-X Standards For Wound Assessment And Care. (1) It is within the scope of a registered nurse or licensed practical nurse practice to perform wound assessments including, but not limited to, staging of a wound and making determinations as to whether wounds are present on admission to a healthcare facility pursuant to an approved standardized procedure, outlined in Rule 610-X-6-.12, Standardized Procedures, including supervised clinical practice and demonstrated clinical competence, initially and at periodic intervals. (1) It is within the scope of a registered nurse or licensed practical nurse practice to perform wound assessments including, but not limited to, staging of a wound and making determinations as to whether wounds are present on admission to a healthcare facility pursuant to an approved standardized procedure, outlined in Rule 610-X-6-.12, Standardized Procedures, including supervised clinical practice and demonstrated clinical competence, initially and at periodic intervals. (2) The minimum training for the registered nurse or licensed practical nurse that performs selected tasks associated with wound assessment and care shall include: (a) Anatomy, physiology and pathophysiology. (b) Fluid and electrolyte balance. (c) Equipment and procedures used in wound assessment and care. (d) Chronic wound differentiation. (e) Risk identification. (f) Measurement of wound. (g) Stage of wound (h) Condition of the wound bed including: (i) Tissues. (ii) Exudate. (iii) Edges. (iv) Infection. (i) Skin surrounding the wound. (j) Pain. Nursing Chapter 610-X-6 Supp. 12/31/ (k) Complications, prevention, and nursing intervention. (l) Identification of any contributing factors including but not limited to: (i) Perfusion/oxygenation (ii) Nutritional status (iii) Infection (iv) Medications (v) Diabetes (m) Photographing wounds. (2) The minimum training for the registered nurse or licensed practical nurse that performs selected tasks associated with wound assessment and care shall include: (a) Anatomy, physiology and pathophysiology. (b) Fluid and electrolyte balance. (c) Equipment and procedures used in wound assessment and care. (d) Chronic wound differentiation. (e) Risk identification. (f) Measurement of wound. (g) Stage of wound (h) Condition of the wound bed including: (i) Tissues. (ii) Exudate. (iii) Edges. (iv) Infection. (i) Skin surrounding the wound. (j) Pain. Nursing Chapter 610-X-6 Supp. 12/31/ (k) Complications, prevention, and nursing intervention. (l) Identification of any contributing factors including but not limited to: (i) Perfusion/oxygenation (ii) Nutritional status (iii) Infection (iv) Medications (v) Diabetes (m) Photographing wounds. (3) The registered nurse and licensed practical nurse may provide wound care beyond their basic education in accordance with an order from an authorized prescriber and after successful completion of an organized program of study, supervised clinical practice and demonstrated clinical competence, initially and at periodic intervals. (3) The registered nurse and licensed practical nurse may provide wound care beyond their basic education in accordance with an order from an authorized prescriber and after successful completion of an organized program of study, supervised clinical practice and demonstrated clinical competence, initially and at periodic intervals. (4) The minimum training for the registered nurse and licensed practical nurse performing selected tasks associated with wound care shall include: (a) Dressing changes including authorized prescriber ordered medication or topical treatment or topical dressing including: (i) Chemical debridement. (ii) Enzymatic debridement. (iii) Autolytic debridement. (iv) Application and maintenance of wound vac therapy. (b) Systemic support including but not limited to (i) Adequate diet. (ii) Hydration. (iii) Turning and repositioning. Chapter 610-X-6 Nursing Supp. 12/31/ (iv) Reducing shear and friction with movement. (v) Incontinence care. (4) The minimum training for the registered nurse and licensed practical nurse performing selected tasks associated with wound care shall include: (a) Dressing changes including authorized prescriber ordered medication or topical treatment or topical dressing including: (i) Chemical debridement. (ii) Enzymatic debridement. (iii) Autolytic debridement. (iv) Application and maintenance of wound vac therapy. (b) Systemic support including but not limited to (i) Adequate diet. (ii) Hydration. (iii) Turning and repositioning. Chapter 610-X-6 Nursing Supp. 12/31/ (iv) Reducing shear and friction with movement. (v) Incontinence care. (5) Sharp debridement is reserved for registered nurses with national certification that included didactic instruction, supervised clinical practice and demonstration of competency, initially and at periodic intervals. Author: Alabama Board of Nursing Statutory Authority: Code of Ala. 1975, §§ (3)(b), (a)(21), (c)(6). History: New Rule: Filed May 21, 2004; effective June 25, Repealed and New Rule: Filed November 23, 2009; effective December 28, (5) Sharp debridement is reserved for registered nurses with national certification that included didactic instruction, supervised clinical practice and demonstration of competency, initially and at periodic intervals. Author: Alabama Board of Nursing Statutory Authority: Code of Ala. 1975, §§ (3)(b), (a)(21), (c)(6). History: New Rule: Filed May 21, 2004; effective June 25, Repealed and New Rule: Filed November 23, 2009; effective December 28, 2009.

DOCUMENTATION DO’S AND DON’TS 1. Do/Don’tWrite legibly. 1. Do/Don’tWrite legibly. 2. Do/Don’t Check to make sure that you have the right chart before you begin charting. 2. Do/Don’t Check to make sure that you have the right chart before you begin charting. 3. Do/Don’t Check before administering a medication to follow the five rights of medication administration: right patient, right medication, right route, right dose, right time. 3. Do/Don’t Check before administering a medication to follow the five rights of medication administration: right patient, right medication, right route, right dose, right time. 4. Do/Don’tAlter a patient’s record to prevent from being sued. 4. Do/Don’tAlter a patient’s record to prevent from being sued. 5. Do/Don’tMake sure your documentation reflects the nursing process and your professional capabilities. 5. Do/Don’tMake sure your documentation reflects the nursing process and your professional capabilities.

Documentation Bloopers “The patient refused an autopsy.” “The patient refused an autopsy.” “The patient has no previous history of suicides.” “The patient has no previous history of suicides.” “Patient has left white blood cells at another hospital.” “Patient has left white blood cells at another hospital.” “On the second day, the knee was better, and on the third day it disappeared.” “On the second day, the knee was better, and on the third day it disappeared.” “The patient has been depressed since she began seeing me in 1993.” “The patient has been depressed since she began seeing me in 1993.” “Discharge status: Alive but without permission.” “Discharge status: Alive but without permission.” “Healthy appearing decrepit 69- year old male, mentally alert but forgetful.” “Healthy appearing decrepit 69- year old male, mentally alert but forgetful.” “Patient had waffles for breakfast and anorexia for lunch.” “She is numb from her toes down.” “While in ER, she was examined, x-rated, and sent home.” “The skin was moist and dry.” “Patient was alert and unresponsive.” “Rectal examination revealed a normal size thyroid.” “She stated that she had been constipated for most of her life, until she got a divorce.” “Skin: somewhat pale but present.” “Patient has two teenage children, but no other abnormalities.”

REFERENCES Alabama Board of Nursing: us/docs/nurs/610-X-6.pdf Alabama Board of Nursing: us/docs/nurs/610-X-6.pdf us/docs/nurs/610-X-6.pdf us/docs/nurs/610-X-6.pdf American Nurses Association (2010). Scope and Standards of Practice (2 nd ed.). Silver Spring MD: Author. American Nurses Association (2010). Scope and Standards of Practice (2 nd ed.). Silver Spring MD: Author. American Nurses Today: electronic-documentation American Nurses Today: electronic-documentation Legal Issues in Wound Care: medline University, on/viewdocumentation Legal Issues in Wound Care: medline University, on/viewdocumentation on/viewdocumentation on/viewdocumentation

DISCLAIMER: This presentation is to inform you of your potential liability exposure in the nursing practice. It reflects general principle information only. It is not to be construed or intended to offer legal advice. Should you need legal advice or have specific concerns, please consult with an Attorney. Neither the Jefferson Law Firm, LLC, Nurses Service Organization, or CNA insurance companies assume any liability for how this information is applied in practice or the accuracy of this information. The CNA professional liability insurance for nurses is underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. CNA is a registered service mark and trade name of CAN Financial Corporation. This presentation was published in part by information from Affinity Insurance Inc. Healthcare Providers Service Organization is a division, and Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc. THANK YOU! THE JEFFERSON LAW FIRM, LLC WHERE WE SERVE WITH “GRACE, JUSTICE AND MERCY” Phone: Fax: