Document disclosure efforts carefully to avoid legal pitfalls down the road

Expect some parties to discourage good documentation

With all the push for full disclosure of adverse events in the past few years, a new problem has arisen for risk managers who support telling patients and family members the whole truth. How and what do you document about that disclosure session? You may think you know what you want to see in the documentation, but don't be surprised if other parties have very different ideas.

Health care organizations have made great progress toward fully disclosing information to patients and family, but the documentation is raising major concerns, says Fay Rozovsky, JD, MPH, president of the Rozovsky Group, a risk management firm in Bloomfield, CT. She addressed the topic recently at the annual meeting of the American Society of Healthcare Risk Management.

Risk managers may have difficulty in deciding exactly how to document the discussion, but the real problem is that plenty of other people want to chime in with their own opinions, Rozovsky explains. Physicians may be reluctant to document in detail because they fear that record will amount to an admission of fault. Nurses may want to document that they disagreed with the doctor's treatment early on, and legal counsel may not want hardly anything documented if it could be used by a plaintiff's attorney later on.

All of those concerns have some validity, but the risk manager must help all the parties reach a reasonable compromise, says James Woods, MD, chair of the Department of Obstetrics and Gynecology at the University of Rochester (NY) School of Medicine and Dentistry. Woods and Rozovsky have studied the issue together and developed recommendations for risk managers. Woods also spoke at the ASHRM conference with Rozovsky.

It might seem simple enough to tell everyone to document the disclosure accurately and completely, just as you expect of any other record. But Rozovsky says you probably will hear objections from your attorney, such as, "How do you expect me to defend you if you write that in the record?" or "Do you realize that is an admission of substandard care?"

However, she notes that those are the same objections that some people have to the full disclosure concept itself. They worry that telling the patient everything will only fuel the fires for a lawsuit. The response to those concerns also should be the same, Rozovsky says.

If the note is written honestly and early, then it is a good piece of evidence to support what you're doing, she says. "The documentation is a record that you informed the patient early and honestly and you were ready to move forward and correct the situation in whatever way was appropriate," Rozovsky says.

You want to document it thoroughly for the same reason you told the patient in the first place, she advises. "It's the right thing to do, and if the patient is going to sue you, telling him and documenting it doesn't change that," Rozovsky says.

Different perspectives on documentation

Consistency is another problem, Woods says. Physicians and nurses may not want to document the disclosure in the same way because they have different perspectives and may want to protect themselves. For example, a nurse may want to note that "Dr. Jones proceeded with the treatment even though I raised concerns."

"Now that's incriminating five years later when the plaintiff's attorney says, 'Look at this. These people couldn't communicate, and the nurse told him not to do this,'" he says. "It's natural for people to want to protect themselves, but the risk manager has to prevent that kind of sabotage that will be so detrimental later on."

The first question to ask about disclosure documentation is whether to document at all. Some people would advocate that the disclosure is not pertinent to the medical care per se, and therefore it need not be fully documented. No documentation or perhaps a terse "the patient was informed about the procedure outcome" would suffice for those people, Rozovsky says. But that approach is wrong, she and Woods say. They advocate a full, but carefully managed, disclosure.

Right away, you need to decide who actually writes the note. Should it be the physician, the nurse, the risk manager? Should a disinterested third party observe the disclosure and document it? Rozovsky says the answer is that whoever does the disclosure should document it. If others have follow-up conversations about the disclosure, they should document them.

Then the big question is exactly what to put in this documentation note. All the concerned parties may have their own ideas, and some will think that it should be minimal. The "just the facts, ma'am" crowd will want just a bare-bones description of what was discussed without any detail, while others will want a summary, and still others will want a long, detailed note.

"The mainstream thinking is mindful of the fact that this record is a legal document and needs to memorialize the discussion," Rozovsky says. "It should include where it took place, when, who was present, who led the discussion, and what factual information was shared."

Limit what can go in note

While Rozovsky and Woods advocate full disclosure and detailed documentation, they stress that the risk manager also must set limits. The disclosure note is not the place for a free-flowing dissertation on what the author thinks about the situation or anyone's interpretation of another party's actions or words.

"There is no opining that the patient seemed upset or alarmed," Rozovsky says. It is reporting factual information, as well as questions that the patient posed and the answers given back, she says. "It should stand the test of time for legal actions down the road, meaning it will refresh someone's memory and substantiate what happened at the time," Rozovsky says.

Brief, cryptic notes are not helpful, she says. Rozovsky also warns that the note must not include any speculation or theorizing about what happened. It is appropriate to note that the caregiver said, "I'm sorry" or otherwise expressed concern and regret, she says. Exactly what to note in that regard may be limited by whether your state offers legal protection for such statements so that they cannot be used against you in court.

Apology might be recorded

But what if the patient says something such as, "I know it's not your fault" or "I don't blame you for what happened"? Because those statements could be useful to you later in a malpractice case, it is tempting to document those comments in the disclosure record, but Woods advises against it. The disclosure note should be factual and including that comment could seem self-serving. Besides, he says, it won't be all that useful later on if the patient decides to sue.

"The patient might say he doesn't remember saying that, or he was just wrong when he said it," Woods says. "It's not as if a jury is going to hold him to a comment like that and find in your favor."

However, Rozovsky notes that some comments from the patient might have a place in the disclosure record. For instance, if the adverse outcome was partly the result of the patient's failure to comply with instructions, an admission to that effect by the patient can be a pertinent fact, she says.

"It may or may not be useful in legal defense, but it certainly will be if you do a root-cause analysis on this event and you have this evidence from the patient," Rozovsky says.

Good policies and procedures needed

The next question is where to put this documentation. Does it go in the medical record? A separate file? A memo to file? A memo under direction of legal counsel?

"There's been a lot of debate over this, but the consensus seems to be moving toward putting it in the medical record," Rozovsky says. "The theory is that this documentation is a part of the ongoing communication process, and it should be a part of the medical record just like the informed consent documents and everything else that documents your communication with the patient."

Rozovsky and Woods advise risk managers to develop policies and procedures on documenting disclosure conversations so that it is done consistently and in the manner most beneficial to the organization. When developing the policy, they advise involving all pertinent parties, such as legal counsel, quality improvement, patient safety, and physician and nurse leadership.

"The policy should make sure that the note not only serves for your legal defense but also satisfies other requirements like accreditation standards, meeting requirements for state law, or compliance issues," Rozovsky says.

Sources

For more information about full disclosure documentation, contact:

  • Fay Rozovsky, JD, MPH, The Rozovsky Group, 272 Duncaster Road, Bloomfield, CT 06002. Tele-phone: (860) 242-1302. Web: www.therozovskygroup.com.
  • James Woods, MD, Chair, Department of Obstetrics and Gynecology, University of Rochester (NY) School of Medicine and Dentistry, University of Rochester, Rochester, NY 14627. E-mail: james_woods@urmc.rochester.edu.