Court Appearance and Importance of Documentation

This article describes a situation encountered while working in a remote native community in northern Canada. You never know when you may be called to court to answer why you treated a client in a particular manner. It may be up to a year after the incident when your case reaches its court date. Don't forget that, 'if you didn't chart it, you didn't do it! Nurses General Nursing Article

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Working in Remote Areas

While working for Health & Welfare Canada as a community health nurse, I received advanced training for outpost nursing at Dalhousie University in Halifax, Nova Scotia. In our training, we were taught the cardinal signs for assessing each body system as well as how to treat emergency cases such as pneumothorax, childbirth, intussusception, etc. This allowed us to communicate with doctors in 'their language' to describe client conditions and receive direction for treatment. The Northern native communities I have worked in receive a doctor's visit one day every six months. The doctor sees the clients that the nurse's cannot diagnose. As a nurse in one of these communities you assess, diagnose, and treat the client. I was 'on call' one evening when a young mother brought in her infant.

I pulled the patient chart and noted the infant had been seen the night before and was put on antibiotics. The client was lying in his mother's arms, he looked to be 3-4 months old and was very lethargic. I asked the mother how he was eating, and she replied that he had only had approximately 5 ounces of formula that day. I then asked what she was feeding him, thinking it would be enfalac, similac or some other acceptable commercial infant formula. When the mother answered 'coffee mate', I felt my stomach drop (listen to your gut instinct). I opened the lid, and when I put my nose to the bottle, I retched - it was putrid smelling. I instinctively tried to feed the infant electrolyte water in hopes he would receive some nutrients, but he had no energy to drink.

Failure to Thrive

I asked how old the baby was and her answer caused an uneasy feeling in my chest. I was shocked when she replied that he was a 'year old'. I plotted his height and weight on the growth and development chart to see where he was on the chart. The results showed 'failure to thrive' and this is considered very significant and warrants further medical investigation. I informed the mother that I wanted to send her son to the hospital in the city to get checked by a doctor. I had her go home and pack while I arranged a plane to transfer them. I kept the child at the nursing station because the mother voiced she didn't want to go to the city and this child needed further medical attention. I had to ensure they would get on the plane. I drove them to the airstrip and gave the medic on the air ambulance a report, the reason for the transfer and the paperwork. I was relieved when they were on the plane and transported to the hospital. I had heard that he was admitted to the hospital with a severe electrolyte imbalance and that was the last I had heard of the situation.

Investigation

About six months after the incident I was informed that there was an investigation into the case and that I was scheduled for an interview with an officer. The entire interview was taped. They wanted to get my perspective on what happened that day the infant was brought into the nursing station (this was very stressful).

Court

Months later I received a subpoena to appear in court as the infant had died. I had to get time off work, fly to the city where the case was being tried, and appear in front of the judge. It was hard to remember all the particulars of that day. By the time I was called to the stand, it was over a year from the date of the incident.

I was thankful they allowed me to look at my documentation to refresh my memory. The notes were all blacked out except my entries so I could not read what others had written. My documentation allowed me to remember the situation and the actions I had taken that day. I 'swore in' on the bible and then the questions started about why I sent the infant while the nurse the night before had not? I replied that I was not sure why the nurse or the doctor that was following this child made the decisions that they did. I can only answer for myself and that the child was diagnosed as 'failure to thrive', he was lethargic and being fed an inappropriate diet.

Lessons Learned

This infant died from severe electrolyte imbalance which could have been prevented if the infant was provided proper nutrition. Without the proper documentation of your assessment and the interventions you provided, you may be in a situation where your licence is on the line (if you didn't chart it, you didn't do it). You are accountable for your nursing decisions, actions, and documentation. Documentation provides communication between healthcare professionals to ensure everyone is aware of the client's condition and the actions taken to ensure safe care.

My manager has commented on two occasions that my charting and documentation is to indepth and specific (very detailed). I just ignore her. There is no way I'm ended up in court and not being able defend myself or not remember what happened in that situation. My charting will save my butt.

Specializes in Complex pedi to LTC/SA & now a manager.
Midiosa said:
I work in a med mal defense firm, and my boss pushes the exact opposite: just because it wasn't documented, doesn't mean it wasn't done. It comes up in depositions a lot, especially where we have assessments from our ER docs that were essentially left blank. A lot of them will later say that even though the form wasn't completed, they still did it, etc. and that sometimes they don't have time to complete the chart, especially in an emergent situation.

That makes no sense. Where is the evidence the work was done a year later. The opposing counsel must have a field day with that logic. My sister is s prosecutor. You would lose in court against her if you presented blank documentation and claim it was done.

Specializes in Healthcare risk management and liability.
Midiosa said:
I work in a med mal defense firm, and my boss pushes the exact opposite: just because it wasn't documented, doesn't mean it wasn't done. It comes up in depositions a lot, especially where we have assessments from our ER docs that were essentially left blank. A lot of them will later say that even though the form wasn't completed, they still did it, etc. and that sometimes they don't have time to complete the chart, especially in an emergent situation.

Yes, this is the Plan B that we use when the charting is not done: we argue that it is our usual and customary practice to do X, Y or Z; we can think of no reason why we would not have followed our usual and customary practice in this instance; and therefore just because it is not charted does not mean it was not done.

This is done to try and salvage a situation in which the charting is poor or non-existent. This line of argument does not carry near as much weight in the eyes of the jury as does an explicit chart entry, and it is easily subject to challenge on the basis of recall: 'Yes, this ED visit was two years ago, and I see 25 patients in the ED every day; and no, I cannot recall this particular ED visit, but I am sure that I did X, Y and Z based on my usual and customary practice'. Sometimes the jury buys this and sometimes they do not.

JustBeachyNurse said:
That makes no sense. Where is the evidence the work was done a year later. The opposing counsel must have a field day with that logic. My sister is s prosecutor. You would lose in court against her if you presented blank documentation and claim it was done.

Please see RiskManager's response to my comment right below yours. She explained it a LOT better than I can. I'm not that great with words.

Basically, we do not use this defense often because our doctors are rarely deposed. But we do have instances where the documentation just doesn't exist, but our insured is adamant that they did it. So they are told to rely on the "just because it wasn't documented, doesn't mean it wasn't done."

I've worked here for almost six years, and we've only gone to trial once and only had maybe four or five of our clients deposed. The trial was for a deceased doctor who left his assessment almost completely blank. It's not much to go on, but when you have nothing else, it's something at least.

RiskManager said:
Yes, this is the Plan B that we use when the charting is not done: we argue that it is our usual and customary practice to do X, Y or Z; we can think of no reason why we would not have followed our usual and customary practice in this instance; and therefore just because it is not charted does not mean it was not done.

This is done to try and salvage a situation in which the charting is poor or non-existent. This line of argument does not carry near as much weight in the eyes of the jury as does an explicit chart entry, and it is easily subject to challenge on the basis of recall: 'Yes, this ED visit was two years ago, and I see 25 patients in the ED every day; and no, I cannot recall this particular ED visit, but I am sure that I did X, Y and Z based on my usual and customary practice'. Sometimes the jury buys this and sometimes they do not.

Yes, thank you. You are way better at writing that than I am. All of our clients are coached to never say they don't remember something or didn't do something. They're told to always say what they would normally do in the situation if they did not remember the patient or the specific visit.

It's amazing how many physicians we have who just don't write anything in their ER records. So many assessments are left blank, and on the rare occasion that they testify, what else can we do? They're not going to straight up admit that they didn't do anything so we have to rely on that they did do it, but they just didn't document it.

Specializes in ORTHO, PCU, ED.

Folks I have to tell y'all something interesting that just occurred that I think you'll be appalled by. I'm a new mom and a member of an online "new mom community" I guess you could call it. On it, we new moms post questions or concerns or just fun stuff regarding life with our new little one and we can respond or whatever. It's like AN but for moms. So a mom posted. The title was "HELP!!!" ...Ok. So. She was wondering why her kid screamed all the time. Went on to explain she was giving him only 1 scoop of the powdered formula to 9 oz of water! It's supposed to be 1 scoop to 2 oz of water!!!! She was basically giving him flavored water!!! So of course all the moms KINDLY told her why her kid was screaming hungry. She literally threatened the mothers who JUST ANSWERED her question and even called their babies vulgar names and all. After all she did ask for "HELP!!!" Needless to say the thread was closed thanks to her vulgarity. She was reported to agencies. But wow. So sad for that baby.

Specializes in Healthcare risk management and liability.
Midiosa said:
Please see RiskManager's response to my comment right below yours. She explained it a LOT better than I can. I'm not that great with words.

I actually self-identify as a 55 year old bald white male.

RiskManager said:
I actually self-identify as a 55 year old bald white male.

Sorry about that!

Specializes in Psych, Addiction.

That got to me as well-- it's the same color so it must be ok, right? I wasn't there so I am not going to judge whether its lack of education or lack of support or lack of supervision or just lack of basic instinctual caring on mom's part. But I agree, that really hurt to read.

Ruger8mm said:
My manager has commented on two occasions that my charting and documentation is to indepth and specific (very detailed). I just ignore her. There is no way I'm ended up in court and not being able defend myself or not remember what happened in that situation. My charting will save my butt.

While I understand your thinking here, your manager has point. Your statement assumes you will never make a mistake, but if you do, you just hung yourself with your charting. Lawyers love this, and your detailed charting will provide them all the evidence they need, and they will use it against you. If you document in a little less detail it can provide you some wiggle room, and your attorney will be able to provide you a better defense. Remember "anything you say can and will be used against you in a court of law" applies not only in criminal proceedings but in civil as well. This just comes from my experience of working in a plaintiffs firm. I am not a lawyer.

JustBeachyNurse said:
That makes no sense. Where is the evidence the work was done a year later. The opposing counsel must have a field day with that logic. My sister is s prosecutor. You would lose in court against her if you presented blank documentation and claim it was done.

the burden of proof is not on the defense. Many times the defense says very little and let's the plaintiffs case implode on itself.

As an auditor, I review charts from facilites across the US. I am amazed at what is and isn't documented and I frequently have commented how in earth would some of the things I see stand up in court. Even with EMR, there will be pages of documents left blank or marked as "not assessed" so the clinician can get to the last entry field to chart on the patient with significant dementia "reminded patient to use call bell". It also important to realize that documentation is also used to support justification of billing, and definitely in that area, if it isn't documented, it didn't happen; and if it didn't happen it won't be reimbursed.