Documentation must be good, even in crisis

The aftermath of Hurricane Katrina shows that health care providers risk criminal prosecution after making difficult decisions, says Lester Johnson, JD, an attorney with the law firm of McGlinchey Stafford in New Orleans.

The risk of prosecution should prompt special attention to risk management, Johnson says. Health care professionals working under emergency conditions should attempt to provide care under as normally as possible, he says. This would include documenting all patient care activities and the reasons as accurately and thoroughly as possible to prevent any subsequent investigations from drawing the wrong conclusions about why the treating professional chose to administer a particular medicine or perform one procedure over another.

For instance, Johnson points to the case of Anna Pou, MD, the New Orleans physician accused of killing patients in the aftermath of Katrina. The attorney general and some of the expert witnesses seemed to rely heavily on the fact that Pou and the two nurses administered morphine and Versed to several patients despite the fact that the patients did not receive those drugs prior to Hurricane Katrina, he notes. "It doesn't appear that the patient's medical records contained clear reasons why they felt the drugs were necessary, so the investigators were free to draw whatever conclusion they wanted in the absence of precise record keeping," he says.

The lack of adequate documentation allowed critics to claim that something nefarious was going on simply because the physician who took over the patient's care changed their medication, Johnson says. In Pou's case, the sweltering heat combined with the lack of food and water made it quite likely that a terminal patient's condition would take a turn for the worse, thereby necessitating a different approach to managing the patient's pain and comfort level, he says. Records showing that change in treatment and the reasoning behind it would have been helpful, he says.

Case shows risks for health workers

The Pou case illustrates some of the risks facing health care workers every day, says Kathy Poppitt, JD, a partner with the law firm of Thompson & Knight in Austin, TX. Her case may have been extreme, but it still holds everyday lessons, Poppitt says.

"I think the take-home lesson here is that with the current extensive regulation and oversight of health care workers and facilities, it is very easy for those workers and facilities to find themselves in unexpected trouble. Once a train such as this one starts to pick up steam, it can be very difficult to bring it to a stop," Poppitt says. "I see the same things almost daily in accusations of fraud and misconduct by civil regulatory agencies. Once the accusations start it can be very difficult, time-consuming, frustrating, and expensive to find a resolution."

Like some other observers, Poppitt says she thinks there could be some health care providers who are scared away from aiding in a disaster. While that may be an overreaction, Poppitt does say risk managers should advise care givers about the risk and how little protection there is against criminal charges.

"Most states have Good Samaritan laws that protect volunteer physicians from civil liability in most circumstances," she says. "Of course, there is no such similar protection for criminal charges. It is a good idea for providers to be familiar with the Good Samaritan laws that apply to them so they can have some comfort in knowing what protections they would have in such situations." [Editor's note: Contact Poppitt at Thompson & Knight, 98 San Jacinto Blvd., Suite 1900, Austin, TX 78701. Telephone: (512) 469-6133. E-mail: Kathy.Poppitt@tklaw.com.]