LNCtips.com: Diary Analysis
A diary written by a patient or family member can be a powerful tool for the plaintiff in a medical malpractice or nursing home case. In fact, some plaintiff attorneys encourage patients and families to keep a diary. Or, a diary can be a powerful tool for the defense; some plaintiff attorneys discourage patients and families from writing a diary. Part of your job as a legal nurse consultant is to determine if the patient or family diary is an asset or a liability to your side.
Analysis of a diary is a little different from medical record analysis. When I review regular medical records, I usually review the records once, creating a medical chronology or making notations for a medical summary as I do the review. However, I review a patient diary more than once. I first review the diary to get the overall feel of the diary. Does the diary reflect fear, sadness or outrage? These emotions are common in diaries. Then I review the diary again to answer some specific questions and to create an analysis of the diary.
Was the diary written at the time of the events or retrospectively? Of course, most diaries are written somewhat retrospectively, such as at the end of the day. But some patient diaries tend to recreate dates and names long after the events took place. As with some late chart entries, late entries in a diary can color the writer's interpretation of events or be inaccurate. An easy way to determine if the diary was written retrospectively is to add the patient's entries to a medical chronology. I usually use a different font color to indicate such entries. If the dates and other facts from the patient diary don't match, there's a good chance that the diary was written a while after the events occurred. If the patient or family member says that the diary was written at the time of event, but the dates and other facts are inaccurate, it can discredit the writer.
Why was the diary written? If you work for the plaintiff, someone from your law firm can ask the writer. If you work for the defense, this would be a question for the writer's deposition. Many patients and family members write diaries as a form of release or therapy. Motives for other writers may be less clear.
Are there gaps in the diary? If so, why? And if there are gaps, do they correspond to significant events? What is the plaintiff's or personal representative's explanation for the gaps? I once analyzed a diary written by a daughter who said that she wrote the diary as a form of emotional release because her mother was dying in a nursing home. However, there was a six-week gap in the typewritten diary. During that time, the daughter made the decision to put her mother in hospice. The daughter was unable to explain the gap. The jury wondered about that gap and why it came at a time when the daughter may have needed an emotional release more than ever. And since the daughter was unable to explain the gap, the jury concluded that the daughter was untruthful and produced a defense verdict.
Is there other information in the diary that's unrelated to the case? I once reviewed a diary that mentioned the patient's pain six times over a period of three months. But the diary mentioned that the writer (the patient's son) went to Kentucky Fried Chicken 12 times during that same time period. In this case, it appeared that the son was more interested in KFC than his mother's pain. When pointed out to a jury, these kind of details can be devastating to a plaintiff's case.
How are the facts presented? If the writer seems detached, the defense will portray the writer as cold. But if the writer uses strong words and emotional phrases, that might be portrayed negatively by the defense ("hot-headed") but positively by the plaintiff ("outraged at the care").
Does it sound like the writer got a little help with the diary? Consider this sentence: "This is neglect and it is the duty of ABC Nursing Home to find out what happened to my mother and why she was wrongly denied the proper medical care and attention." This is not a statement that is likely to have been made by someone without legal training. Laypersons don’t even know what the term “duty” means.
Does it sound like medical records were reviewed before the diary was written? Consider this sentence written in a wife's diary after her husband's visit to the ER: "James was released and returned to ABC Nursing Home by personal car." The terms "released" and "personal car" are terms seen in an ER record. If this was written without the benefit of medical records, it might read, “I drove James back to the nursing home from the ER.”
And finally did the writer take any actions other than write about the events? Did the writer discuss concerns with management or physicians? Some patients are reluctant to discuss problems at the time they occur for fear of retaliation from staff. If that's the case, were problems discussed after the event? Were the health care workers reported to the state for their actions? If the only action taken by the writer was to write in a diary, it may be difficult for jury members to believe that the writer was truly concerned or affronted.