GSRT: An Hour with the Enemy

1
GSRT An Hour with the Enemy
Charles A. Dorminy, J.D., LL.M. Hall, Booth,
Smith Slover, P.C. 220 East 2nd Street Tifton,
Georgia 31794 Email cad_at_hbss.net Phone (229)
382-0515
2
Malpractice Payments by Nursing Category 1998-2001
3
Roadmap

• Overview of lawsuits
• Law regarding Documentation
• Pitfalls and Issues
• Examples

4
Common Themes of Suits

• Plaintiff attorneys with expertise in medical
  negligence cases.
• A sympathetic Plaintiff.
• The lawsuit names not only the radiologist but
  other medical specialties. Each physicians
  defense is at odds with the other.
• Bad outcome which was preventable but for Your
  negligence.
• Well-traveled, experienced medical experts who
  make thousands of dollars in testifying based
  upon opinions made in hindsight.

5
Time Limitations

• A lawsuit must be filed generally within two
  years of date of injury. This is known as the
  statute of limitations. The statute of
  limitations, is extended if a minor is involved.
• A claim not filed within five years of the date
  of negligence is barred by the statute of repose.
  This is absolute.

6
What happens in a lawsuit?

• Pleading
• Complaint
• Answer within 30 days
• Discovery
• Obtain medical records, interviews, meetings
• Interrogatories
• Requests for Documents
• Non-Party Requests for documents
• Depositions

7
What happens in a lawsuit?

• Expert witness reviews
• Deposition of experts
• Motion for Summary Judgment
• Alternative Dispute Resolution
• Arbitration, Mediation, Negotiation
• Trial

8
Two potential claims

• Negligence
• Malpractice or Simple
• Battery
• Unlawful touching

9
Negligence or Malpractice

• Simple Negligence
• A mere breach of duty
• i.e. Dropping a patient
• Professional Negligence or Malpractice
• Requires exercise of professional judgment
• i.e. Sticking patient in the wrong place

10
To Prove Negligence (either)

• Duty
• Breach (in standard of care)
• Proximate causation
• Damages
• __________________
• Negligence

11
Overview of Negligence

• "A medical provider who undertakes to perform
  professional services for a patient must use
  reasonable care to avoid causing injury to the
  patient.
• The knowledge and care required of the physician
  is the same as that of other reputable physicians
  practicing in the same or a similar community and
  under similar circumstances.

12
Overview of Negligence

• A medical provider not only must have that degree
  of learning and skill ordinarily possessed by
  other reputable providers but also must use the
  care and skill ordinarily used in like cases.
• A failure to have and use such knowledge and
  skill is negligence." Georgia Pattern Jury
  Instructions

13
First Element

• Duty
• Plaintiff (person suing) must prove that there
  was a doctor patient relationship
• You all owe your patients a duty to act
  reasonably.
• Most patients do not know the rad techs prior to
  exam
• i.e. they didnt choose you
• Do you have a relationship with patient?
• Perform x-ray etc on patient
• If youre in the record (or supposed to be) then
  you have a duty

14
Second Element Breach of Standard of Care

• Standard of Care
• Reasonable and customary medical practice in
  like circumstances
• There is no requirement of a perfect result.
• Cannot blame the medical provider solely because
  of a bad result, no matter how bad the result.

15
Second Element Breach of Standard of Care

• Defendants are presumed to have complied with the
  standard of care
• Plaintiffs have the burden of proof
• By a preponderance of the evidence
• Must tip scales slightly in their favor, thats I
• Plaintiffs must overcome presumption with
  competent expert testimony

16
Competent Experts

• Active practice in defendants profession or
  specialty for at least 3 of the 5 years prior to
  the date of injury
• You too can be an expert!
• Actual professional knowledge and experience in
  the area of practice or specialty in which the
  opinion is to be given.
• But Ive never done it before
• Up to the discretion of the trial judge
• Doctors can testify about nurses
• But can Radiologists testify about rad techs?
• (O.C.G.A. 24-9-67.1 effective 2/16/05)

17
Experts

• Competent to offer opinions about rad techs based
  upon education, training and experience

18
Experts Opinions

• Must be accepted within the medical community.
• Not junk science

19
Third Element

• Proximate Causation
• Plaintiff (person suing) must prove that she
  suffered injuries as a result of the defendants
  (person being sued) negligent act or omission and
  injuries would not otherwise have occurred.
• Proof to reasonable degree of medical certainty
• more likely than not

20
Fourth Element

• Damages
• If those three elements (duty, breach in the
  standard of care, and proximate cause) are
  proven, defendant will be liable for the
  resulting damages
• No harm no foul

21
Malpractice for Rad Techs

• Not a lot out there
• Usually sue the radiologist and/or Hospital
• They may blame it on you
• Documentation is your defense

22
Two potential claims

• Malpractice
• Negligence
• Battery
• Unlawful touching

23
Battery

• Unlawful touching
• Any unauthorized and unprivileged contact by a
  medical provider with his patient in examination,
  treatment or surgery would amount to a battery.
• In the interest of one's general right of
  inviolability of his person, any unlawful
  touching of that type is a physical injury to the
  person and is actionable.

24
Consent

• No battery if consent is obtained
• Consent to medical or surgical treatment may be
  manifest by acts and conduct, and need not
  necessarily be shown by writing or by express
  words
• It may be implied from voluntary submission to
  treatment with full knowledge of what is going on
  
• What about withdrawal of consent?

25
Withdrawal

• Withdrawal after examination is in progress
• The patient must act or use language which can be
  subject to no other inference and which must be
  from a clear and rational mind.
• Must be such as to leave no room for doubt in the
  minds of reasonable men that in view of all the
  circumstances consent was actually withdrawn.
• It must be medically feasible to stop at that
  point without the cessation being detrimental to
  the patient's health from a medical viewpoint.

26
Withdrawal

• The burden of proving each of these essential
  conditions is upon the plaintiff, and with regard
  to the second condition, it can only be proved by
  medical evidence as medical questions are
  involved.
• 2 requires expert testimony

27
Mims v. Boland

• Patient underwent barium enema
• Previous colon resection
• Had colostomy
• Claims withdrawal during procedure

28
Mims v. Boland

• "When the doctor . . . started giving me the
  enema he was going to insert the bardex catheter
  tube . . . into the colostomy and I told him,
  'Better let me insert that tube because I am in
  the habit of taking an enema and I know how to
  insert these rubber tubes without hurting,
  because there is such a crook in the colostomy,
  it has to go part one way and then has to be
  turned, because it can't go just right straight
  down.'

29
Mims v. Boland

• "He said, 'No, you don't know how to do it,' and
  he continued with this thing, and I tried to take
  it out of his hand and he wouldn't let me have
  it. He said, 'No, you can't do it.
• "So with that he shoved that thing right into my
  colostomy and right on in and just nearly killed
  me.
• "And then when he started pouring that barium
  into that tube that had been inserted, he poured
  so much I said, 'I can't take all of the barium
  because I don't have but a very small part of my
  large colon,' and of course he didn't know
  anything about what I had had done and he still
  kept giving me more.

30
Mims v. Boland

• 'That is just all I can take. It's just killing
  me,' and I just kept getting very, very terrible
  pains and suffering terrible all the time he was
  giving it to me. . ."I was in such intense pain
  and that I didn't think I could stand it and I
  just kept begging both of them not to give me any
  more of it. . ."Oh I just suffered terrible, I
  suffered torture, started into just rigors and
  just shaking, and they had to hold me on the
  table. . ."

31
Mims v. Boland

• Court said not an effective withdrawal
• merely shows protestations by the plaintiff of
  pain and discomfort and disagreement with the
  defendants in the manner they administered the
  barium enema.

32
Battery Final Thoughts

• From my perspective, if even close to withdrawal,
  stop and have them confirm they want to go
  forward
• If they want to stop, go get the doctor
• Costly to defend
• Depositions
• Expert testimony
• Motion
• trial

33
What causes lawsuits?

• These plus injury lead to suit
• Poor documentation
• Failure to Chart
• Incomplete Documentation
• Charting before Doing
• Charting well after Doing

34
Best Defense Good Offense

• Documentation
• Crucial to the medico-legal process
• One of the most critical aspects of defense
• The medical record must be complete and as
  accurate as possible when introduced into evidence

35
Legal View of Documentation

• If it wasnt documented, it didnt happen.
• Not true many ways to prove you did it
• But easier when documented

36
Law

• Joint Commission
• State Regulations
• Hospital Policies and Procedures

37
Joint Commission

• IM.6.20.1 Medical Records contain, as
  applicable, information addressing 18 clinical /
  case information areas
• Emergency care, treatment, and services provided
  to the patient before his or her arrival
• Documentation and findings of assessments
• Conclusions or impressions drawn from medical
  history and physical examination
• Diagnosis, diagnostic impression, or conditions
• Reason(s) for administration of care, treatment,
  and services

38
IM.6.20.1

• Goals of the treatment and treatment plan
• Diagnostic and therapeutic orders
• Diagnostic and therapeutic procedures, tests, and
  results
• Progress notes made by authorized individuals
• Reassessments and plan of care revisions

39
IM.6.20.1

• Relevant observations
• Response to care, treatment, and services
  provided
• Consultation reports
• Allergies to food and medicines
• Medications ordered and prescribed

40
IM.6.20.1

• Dosages of medications administered
• Strength, dose, or rate of administration
• Administration devices used
• Access site or route
• Known drug allergies
• Adverse drug reactions

41
IM.6.20.1

• Medications dispensed or prescribed on discharge
• Relevant dosages / conditions established during
  course of care, treatment, or services

42
IM.6.20.2

• Medical Records contain the following demographic
  information
• Patients name, sex, address, date of birth, and
  authorized representative
• Legal status of patients receiving behavioral
  health care services
• Patients language and communication needs

43
IM.6.20.3

• Known evidence of advanced directives
• Evidence of informed consent
• Records of communication with patient regarding
  care, treatment, and services
• Discussion of withdrawal of consent

44
Law

• Joint Commission
• State Regulations
• Hospital Policies and Procedures

45
State Regulations

• Why are they important?
• Lose your license
• Hospital may lose its license
• Ga. Comp. R. Regs. r. 290-9-7-.18 (2007)

46
State Regulation

• Entries in the Medical Record
• All entries in the patient's medical records
  shall be
• accurate
• legible and
• Shall contain sufficient information to support
  the diagnosis

47
State Regulation

• Describe
• The treatment provided
• The patient's progress
• Response to medications and treatments.
• Inpatient records shall also contain sufficient
  information to justify admission and continued
  hospitalization.

48
State Regulations

• All entries shall include
• The date of the entry and
• The signature of the person making the entry
• Late entries shall be labeled as late entries

49
State Regulations

• Verbal / Telephone Orders
• The hospital, through its medical staff policies,
  shall appropriately limit the use of
  verbal/telephone orders
• Shall be used only in situations where immediate
  written or electronic communication is not
  feasible and the patient's condition is
  determined to warrant immediate action for the
  benefit of the patient
• Shall be received by an appropriately license or
  otherwise qualified individual as determined by
  the medical staff in accordance with state law.

50
State Regulations

• Verbal / Telephone Orders
• The individual receiving the verbal/telephone
  order shall
• Immediately enter the order into the medical
  record
• Sign and date the order, with the time noted, and
• Enter the dose to be administered.

51
State Regulations

• Verbal / Telephone Orders
• The individual receiving the order shall
  immediately repeat the order
• The prescribing physician or other authorized
  practitioner shall verify that the repeated order
  is correct
• The individual receiving the order shall
  document, in the patient's medical record, that
  the order was "repeated and verified.

52
State Regulations

• Verbal / Telephone Orders
• Shall be authenticated by the physician or other
  authorized practitioner giving the order, or by a
  physician or other authorized practitioner taking
  responsibility for the order, in accordance with
  hospital and medical staff policies

53
Law

• Joint Commission
• State Regulations
• Hospital Policies and Procedures

54
Policies and Procedures

• Developed by hospital
• Usually will specify what should be included in
  the record for any given situation
• But not all situations
• NOT Standard of Care
• But can be used to show competence
• Should guide your care and treatment
• Study your policies and procedures
• Will be asked about them in deposition

55
Pitfalls and Issues
56
Pitfalls Issues

• Common Pitfalls
• Opinions are charted
• Not facts
• Generic language used
• For example Verbalized understanding for a
  comatose patient
• Entries are obliterated
• White out
• All charting is done at end of shift

57
Pitfalls Issues

• Physician may be notified but its not in the
  record
• Charting for someone else
• Symptoms are charted but not what was done about
  it,
• i.e. pain during enema, etc.
• Stop procedure?
• Response to treatment
• pain reduced?

58
Pitfalls Issues

• Patients record is obviously altered
• Unacceptable abbreviations are used
• Vague descriptions are documented
• a large amount
• Excuses are given
• Meds not given because not available
• So.what did you do about it?

59
Pitfalls Issues

• Language charted suggests a negative attitude
• stubborn, looney, etc
• Charting is wishy-washy
• Appears to be
• Charting ahead of time and not actually
  performing the task

60
Pitfalls Issues

• Staffing problems recorded in record
• We dont have enough rad techs
• Staff conflicts recorded in the record
• Doctor is wrong
• Erasable ink used in the record
• Documentation suggesting that the patients
  safety was at risk
• Almost caused perforation
• Wrong patient was named in the record

61
WHAT NOT TO SAY

• We are so short staffed, we are all working
  ourselves to death.
• This hospital is full of patients with
  infection.
• I am so tired.
• If I were patient, I would look for another
  doctor.
• Dr. ______ is terrible at catching breast
  cancer.

62
What to Look Out For

• Proper patient identification
• Patient abuse or neglect (real or perceived)
• Failure to properly use equipment (i.e.-
  monitors)
• Failure to properly supervise personnel
• If there are complaints about personnel, go up
  your chain

63
ADVERSE OCCURRENCES

• Complete Variance Report for anything out of
  ordinary (falls, equipment malfunction, injuries,
  etc.)
• Call Risk Management for guidance, if necessary
• Chart Facts ONLY
• Dont hypothesize or blame
• Dont state error made
• Dont indicate Variance Report was Completed
• Dont include Variance Report in Chart

64
Bad Documentation

• Time gaps,
• Event gaps,
• Illegibility,
• Questionable wording,
• inconsistencies (sudden break in pattern of
  reporting)

65
Good Documentation

• Timely,
• Detailed,
• Reflects a patients reactions and/or
  understanding of information and situation,
• Documents presence of staff and physicians

66
Pitfalls Issues

• Narrative charting
• Provides basis to go back years after the fact
  and know what they meant when they wrote the
  notes in the chart
• Gives the attorney much more to go on when
  defending a case

67
What charting says about you

• Tells the jury
• About our competence
• About our professionalism
• About our respect for the patients and their
  families,
• About our relationship with our colleagues on the
  team
• About our degree of compliance with the policies
  and procedures

68
Jury Issues

• Juries rely heavily on charting
• Chart is the most reliable source of information
  to determine what happened
• If a provider charts properly, the chances of
  winning a lawsuit is much better

69
Plaintiffs attorney

• A Plaintiffs attorney best case scenario is when
  a provider charts with the mindset of criticizing
  others or using the chart as a medium for making
  disparaging or hurtful remarks regarding the
  institution and its policies.

70
Whats Enough?

• How can we distinguish between adequate and
  inadequate documentation?
• How can we be sure that we addressed all aspects
  of our interventions in our documentation in any
  given situation?

71
Purposes of documentation

• To furnish authoritative information on patient
  care
• To help verify quality of care
• To assist in the coordination of care
• To ensure continuity of care
• To seek reimbursements

72
Purposes of Documentation

• reflect the fundamental values of
• Authenticity
• Quality
• Accountability
• Responsibility
• Professionalism

73
Purposes of Documentation

• To comply with regulations of the government and
  accrediting organizations
• To provide evidence in the court of law
• To generate data for research

74
Problems Caused

• Incomplete documentation can negate the purpose
  of documentation
• Quality of care cannot be evaluated
• Reimbursements may be rejected
• The document cannot stand as sound evidence in
  the court of law
• Authenticity will be compromised
• Data generation will be inadequate
• Continuity of care may be broken, and
• Coordination of care may not be ensured.

75
Examples

• ate lunch well vs. ate 50 lunch
• called results to MD vs. called CBC, chem 7
  results of 1600 to MD

76
Six Servants

• When
• What
• Where
• Who
• Why
• how

77
Examples

• Entry No. 1
• 6/6/00   0900   IV heplock started in right
  hand...........CParker, RN
• Does it answer all 6 Servants?

78
Examples

• When we invoke the six honest servants, entry no.
  1 will provide answers to when, what, where, and
  who
• but not to the remaining two questions, why and
  how.

79
Examples

• Entry No. 2 
• 6/6/00    0900   IV heplock started in right hand
  using 20 G cathlon, and start kit per telemetry
  protocol....................CParker, RN

80
Examples

• Entry No.2 will provide answers to the six
  questions as follows  
• When     .....   6/6/00    0900 What  .....  IV
  heplock started  Where  .....  in right hand 
  Who   .....     CParker, RN Why  .....  per
  telemetry protocol How   .....  using 20 G
  cathlon, and start kit

81
Examples

• Entry No. 3
•  6/6/00  0600   foley  catheter inserted
  .........CParker, RN 
• Entry No. 4  6/6/00  0630   ate 60 breakfast 
  ..............CParker, RN

82
Examples

• The above entries no. 3 and 4 have the answers to
  when, what, and who
• Now consider the following entries no. 5 and 6 to
  replace the above two entries no. 3 and 4

83
Examples

• Entry No. 5
•  6/7/00  0600   16 Fr foley catheter inserted
  urethrally by using sterile technique per MD
  order successfully. The patient tolerated the
  procedure  without acute distress. Clear yellow
  urine return noted. ........CParker, RN 

84
Examples

• Entry  No. 6
• 6/7/00  0630  Pt. sitting in chair. Pt. scheduled
  for    EEG,  Early 2g sodium diet breakfast
  served. Ate 60 by self feed. Swallowing without
  difficulty......CParker,RN 

85
Examples

• In entry no. 5,  the answers  are     When 
  .........  6/7/00  0600    What   .........  16
  Fr foley catheter inserted   Where  ........  
  urethrally   How    .........   by using sterile
  technique successfully    Why    .........  per
  MD order   Who    ......... ........CParker, RN 

86
Examples

• In entry no. 6 the answers to all the six
  questions are
•  When   ........  7/30/99  0630   Where 
  ........  Pt. sitting in the chair  What  
  ........... Early 2g sodium diet breakfast
  served. Ate 60   Why    ..........  Pt.
  scheduled for EEG  How   ..........  by self
  feed. Swallowing without difficulty  Who 
  ................CParker, RN

87
Nursing Home case

• Patient developed infection in sinuses
• 3/31 Doctor examined
• 4/1, 715 p.m.
• Resident L side of face and cheek very swollen.
  Resident complains of mouth hurting
• Calls doctor
• Rocephin 1 gram IM now, then start PVK PO QID x7
  days consult dentist monday
• 4/1, 130 a.m.
• No distress noted
• 4/2, 12 a.m.
• Lying in bed

88
Nursing Home case cont.

• 4/2, 6 a.m.
• Resting quietly this shift
• 4/3, 8 p.m.
• Red area on check
• 4/3, 9 p.m.
• Called dr. to send to ER
• Emergency surgery
• Patient dies 4/7

89
Hospital case

• Child comes to ED on monday
• Complains of throw up and diarrhea
• Child tolerates 16 ounces of mountain dew
• 20 ounces fluid challenge successful
• Child admitted to hospital Tuesday
• Pulse ox is 85
• Never charted again
• Not sure if normal or if any complications
• Child dies from dehydration

90
(No Transcript)