When experts review ED charts for plaintiff attorneys, nursing notes almost always are an area of focus.

“The nursing notes are often the documentation that ‘fills in the blanks’ not covered by the physician reports,” says Andrew P. Garlisi, MD, MPH, MBA, VAQSF, EMS medical director at Cleveland-based University Hospitals EMS Training & Disaster Preparedness Institute.

Sometimes, nursing notes seem intent on pointing out what EPs did wrong. “This creates the opportunity for finger-pointing, a dream come true for the plaintiff attorney,” Garlisi says. Some examples of this kind of problematic charting:

  • “Patient became hypotensive. Physician advised, but did not immediately examine the patient.”
  • “Doctor informed of chest pain at 15:24.”
  • “Physician informed of patient’s increased agitation.”

“If the physician does not have a matching notation, specifically timed, addressing the nursing concern, it leaves an opening for the plaintiff in the event of an adverse outcome,” Garlisi cautions. The reverse also is true. Garlisi has seen EPs document these passive-aggressive items:

  • “Antibiotics ordered for patient with septic shock at 14:00, but were not administered by nurse until 16:25.”
  • “Patient was ordered to be on continuous cardiorespiratory monitoring. However, when I entered the room, the patient was not on the monitor and was unresponsive.”
  • “I ordered vital signs every 15 minutes, but vitals were not performed for over one hour, and the patient was found to be profoundly hypotensive.”

Generally, a unified defense is recognized as the best approach for all defendants in ED malpractice claims, but finger-pointing notes make it difficult. Garlisi suggests EPs and ED nurses meet briefly before each shift to discuss the importance of teamwork, not only regarding patient care but also documentation.

“Combined physician-nurse staff meetings are actually not common,” Garlisi observes. “This makes pitfalls in patient care and documentation more likely to occur.”

ED nurses are more likely to be employed by the hospital than EPs, who often are independent contractors. This can create different chains of command.

“If emergency directors and administrators do not see eye to eye with nursing directors and administrators, combined meetings are not likely to occur,” Garlisi cautions.

As a result, many ED nurses and EPs have no idea about the liability implications of using charts to air grievances. “They may not be aware of the potential risk management complications that could ensue,” Garlisi offers.

Typically, juries do not want to assess large damages against nurses, according to Michael M. Wilson, MD, JD, a Washington, DC-based healthcare attorney. “But when they make criticisms in the chart against the other healthcare providers, it will most likely come back to prevent the institution from mounting a successful defense,” Wilson warns. These are some common examples:

The ED nurse documents findings that contradict the EP’s findings. One malpractice claim alleged a delay in diagnosing and treating Stevens-Johnson syndrome, a rare but serious disorder. The EP did not document a rash, but the ED nurse did. The plaintiff attorney raised this question: Why would an ED nurse document a rash that did not exist?

The documentation created major credibility issues during litigation. “It made it inadvisable to try the case,” Wilson explains. “The malpractice claim was settled by the institution that employed the ED physician and operated the ED.”

An ED nurse is upset about the EP’s actions. One malpractice case hinged on the ED nurse’s documentation of “multiple calls made to the on-call obstetrician, which went unanswered for a two-hour period.”

The neonate was subsequently delivered through an emergency cesarean procedure. The baby sustained severe brain injury. “That case had to be settled for seven figures,” Wilson recalls.

Experienced nurses are unhappy with the performance of less-experienced residents. Some ED nurses intentionally flag the resident’s perceived mistakes. That can create major legal issues — and not just for the resident, but also for the institution and everyone involved in the case. “Once the healthcare providers start blaming each other, the case frequently becomes nondefensible,” Wilson says.

That is because healthcare providers have far greater credibility than any of the hired experts on either side. “Once the ED nurses start telling the jury that, for example, the resident made medical mistakes that caused injury to the plaintiff, it damages the credibility of defense counsel, their experts, and other ED providers who will all be testifying that nothing was done wrong,” Wilson explains.

Unfortunately, some ED nurses view inflammatory charting as a way to protect patients from unsafe care. Ideally, there is a chain of command through which nurses can discuss what they see as inappropriate treatment decisions or incompetence. “They could report concerns without repercussions, instead of taking matters into their own hands and putting negative comments in the chart,” Wilson says.