IT'S ALL FREE! Documented but Not Done

As nurses, we've all learned the phrase: not documented, not done. The phrase implies that if the caregiver didn't document all aspects of care, the care wasn't performed. This phrase has been a boon to plaintiffs until recently. I'm now seeing plaintiffs file lawsuits claiming that documentation was done, but the care wasn't actually performed. There's a simple reason for this change in approach by plaintiffs. And there are some big implications for expert, in-house, and independent legal nurse consultants.

The simple reason for the change is electronic medical records. What I'm now seeing is that good documentation can still lead to lawsuits. That's because many of these records use time savers, such as self-populating fields. For example, a review of systems related to a patient's gastrointestinal history might self-populate as the following:

Denies appetite changes, weight changes, dysphagia, nausea, vomiting, hematemesis, bright red blood per rectum, melena, abdominal pain, colic, icterus, diarrhea, constipation, change in bowels, tenesmus, hemorrhoids, rectal pain, hernia.

If the patient has any of the signs or symptoms listed above, the caregiver identifies the words that describe the patient's GI history. As a legal nurse consultant, you'll recognize those words because they will be in a bold font, have a blackened circle in front of them, or otherwise stand out from the other terms.

If the patient has none of the listed signs and symptoms, the caregiver doesn't have to chart anything with some types of electronic record systems. When reviewing the medical records, the LNC will see that the patient denied having any of the listed GI problems.

However, I'm now seeing lawsuits in which plaintiffs claim that caregivers never asked the questions listed in the self-populated fields. In essence, we now have situations in which care has been documented but possibly not done.

How will plaintiffs prove that the care wasn't done? They'll do it the same way that defendants prove that they actually performed care that wasn't documented - by verbal testimony.

Independent and in-house LNCs who work with plaintiff firms often meet with potential clients and then correlate their allegations to the medical records. Up until recently, if documentation in medical records didn't support a patient's allegations, attorneys would often forgo filing a lawsuit on the patient's behalf. However, with electronic medical records, LNCs need to take an additional step, by trying to determine if the records themselves might be inaccurate.

For example, consider the following two scenarios. In the first scenario, a patient visits his primary care provider (PCP) whose electronic medical record system has self-populating fields. In the GI section of the history, the PCP's records show that the patient denied GI signs and symptoms. However, the next day, the patient visits the emergency room where the physician eventually diagnoses a ruptured diverticulum. In this scenario, there's a chance that the PCP's electronic documentation is inaccurate because of the closeness of time between the two visits.

The second scenario has the same set of circumstances, except that the patient visits the ER two weeks later instead of the next day. In the second scenario, it would be more difficult to allege inaccurate documentation because of the two-week time lapse between the two visits. Identifying inconsistencies between the records and the patient, then reporting those inconsistencies to the attorney are important actions for the LNC to take.

Experts for plaintiffs need to be careful when using patient statements as part of their opinions, unless the statements are part of sworn testimony.? Several of the attorneys in the defense firm where I work will challenge expert presuit affidavits based on unsworn plaintiff statements. For example, they have challenged expert affidavits that have used statements such as, "According to information provided by the staff of the law firm, the patient complained of left lower quadrant pain when he visited Dr. X on February 18, 2015." The defense attorneys that I work with HAVE accepted expert affidavits that are accompanied by an affidavit from the plaintiff. Affidavits, which are sworn statements, might be worded as, "When I visited Dr. X on February 18, 2015, I complained of pain in the lower left side of my abdomen." The expert's affidavit would then include a statement such as, "According to the affidavit of patient John Remoran, he complained of pain in his lower left side when he visited Dr. X on February 18. 2015."

For years, I've said that verbal testimony carries the same weight as written documentation, at least in the eyes of the law.? I think we're going to see more and more lawsuits that are based on inconsistencies between plaintiff statements and electronic documentation of care. In other words, we're going to see more lawsuits based on cases that were documented but not done.

...Katy Jones