ED nurses’ defensive charting can backfire legally on all involved parties. Instead, to avoid increasing legal exposure, ED nurses can:

  • articulate concerns about an EP’s lack of response in an incident report to risk management;
  • engage in a dialogue with the EP if there are disagreements on assessment;
  • use the chain of command to address patient care issues.

A seemingly innocent statement such as “EP informed of changes” often is found in ED nursing notes, referring to the patient’s deteriorating mental status, pain levels, or vital signs. “That type of chart entry does create legal issues. It sets the ED provider up for a claim that she or he actually knew what the changes were,” says Mark Kadzielski, JD, a partner at BakerHostetler in Los Angeles. If a bad outcome happens, the chart entry can bolster allegations that the EP did not meet the standard of care.

“No one’s needs are served by such ‘finger-pointing’ documentation,” Kadzielski offers.

Many times, EPs are unaware of what nurses have documented at the time of the ED visit. They sometimes even struggle to find the nursing documentation at all. “The EMR can be confusing to locum tenens providers in the ED, as well as other providers like consultants, who don’t regularly work in the ED,” Kadzielski notes.

If EPs do not see the nursing notes, they will not be able to address statements claiming they did nothing to address a patient’s deteriorating condition. “From a defense perspective, conflicting entries on a patient’s chart are often cause for concern,” says Steven A. Medina, Esq., an attorney in the Philadelphia office of Conrad O’Brien.

The EP in question may find out about the nursing notes only after someone sues, and those notes are produced in discovery. “In the context of litigation, a physician who is unfamiliar with a particularly informative nursing note may find him or herself backpedaling if familiarity with the note may have changed a critical decision and, potentially, the patient’s outcome,” Medina explains.

The nursing documentation can paint a picture of an arrogant, uncaring EP. An EP’s thorough documentation showing all available information was considered can refute this. “Defensive documentation does not help the patient,” Kadzielski says. “It can backfire on the person and/or the institution where it happens.”

The better practice is for ED nurses to articulate any concerns regarding an EP in an incident report to risk management, Kadzielski recommends: “That is outside of the patient record, and is protected from discovery.” ED nurses inform the EP about a patient’s low potassium level, but the EP chooses not to treat it. The ED nurse writes, “Doctor notified of lab result, and does not want to give a potassium supplement.”

“Nurses will use this terminology as a method to take the onus off of them and onto the practitioner when a patient condition changes,” says Mary Parsons-Snyder, MBA, RN, patient safety analyst and consultant at the ECRI Institute. Many ED nurses believe these kinds of statements protect them legally. That is a mistake, Parsons-Snyder warns.

The reality is that placing blame on another ED provider can hurt everyone named in a lawsuit, including the nurse. Parsons-Snyder says a “strong culture of safety” in the ED includes these practices:

  • ED nurses and EPs should engage in a dialogue if one provider disagrees with another’s assessment;
  • ED nurses should know how to use the chain of command to address issues they believe are detrimental to the patient;
  • EPs should understand that ED nurses are trained to document what is going on with the patient and to whom they communicated the information.

If, instead of following these practices, ED nurses choose to point fingers at the EP in the chart, says Parsons-Snyder, “they are not thinking ahead to the potential consequences for everyone during litigation.”