Careful Log of Time, Incidents Can Be Crucial to Defense
OB malpractice cases often hinge on the fine details of when certain events happened, when steps were taken, and how much time passed before clinicians intervened to protect the patient. That is why OB teams must be fastidious about documenting the treatment process, says David Waxman, JD, partner in the litigation group of the Chicago law firm Arnstein & Lehr.
“When a team response is called for in labor and delivery, it often involves multiple providers working simultaneously. Thereafter, providers should promptly chart their care, and when and how that care was delivered,” Waxman says. “Should that care ultimately be addressed in a medical malpractice case, those chart entries are often the primary, if not sole, basis for a lawyer to establish the narrative on how the patient was treated.”
Although everyone remembers events differently, it is in the hospital’s best interest that these reports be consistent in describing what happened and when, Waxman says. Thus, when team care is provided, assigning someone with primary responsibility for keeping time and noting when particular events occur is important.
It also is prudent for hospitals to encourage immediate post-event follow-up for the providers to review what occurred and when it occurred before they document their care, he says. Such follow-up discussions are likely to be discoverable, so it is critical that quality-related discussions be deferred to an appropriate forum where privilege will shield such discussion, he says.
“Hospitals are forced to thread the proverbial needle in creating policies which address these post-event, pre-charting discussions. On the one hand, coordination is to be encouraged, and to the extent practicable, the descriptions of what occurred should not only be accurate but should also be consistent,” Waxman says. “Yet, the hospital cannot be so heavy-handed in addressing these discussions as to snuff out differing recollections and create anything that could be criticized as a ‘conspiracy of silence.’”
Using a dedicated timekeeper can go a long way toward eliminating otherwise avoidable conflicts between the notes of the various providers, he suggests. Engaging in an open and forthright post-event discussion may also serve to reduce inconsistency in chart entries, and allow for a narrative to be created in defense of the care.
“However, policies governing these discussions will also be discoverable, and policies which unduly stifle individual recollection in the pursuit of charting with one voice will ultimately backfire and will undercut the credibility of the providers’ notes and any narrative based on those notes,” Waxman says.
SOURCE
- David Waxman, JD, Partner, Arnstein & Lehr, Chicago. Telephone: (312) 876-7867. Email: [email protected].
OB malpractice cases often hinge on the fine details of when certain events happened, when steps were taken, and how much time passed before clinicians intervened to protect the patient.
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