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What Are the Actual Legal Risks if You Did It, but Didn't Document?
Any piece of information could be critical
[Editor's note: This is the first of a two-part series on documentation and ED liability. This month, we explore the legal risks of inadequate documentation and information that should not be omitted. Next month's issue will cover liability risks when the ED physician or nurse's documentation is inconsistent with documentation by other caregivers.]
Despite the adage, "If it wasn't documented, it wasn't done," not everything that ED nurses and physicians do is actually documented. The fact is, documentation omissions and errors do occur. The question is, what piece of information is likely to become crucially important from a legal perspective?
Steven J. Davidson, MD, MBA, FACEP, FACPE, chairman of the Department of Emergency Medicine at Maimonides Medical Center in Brooklyn, NY says that in his opinion, the conventional wisdom of "If it wasn't documented, it wasn't done" is really a consequence of the breakdown of trust between patients and physicians. "This is a real phenomenon I've observed over my 35 years in the ED," he adds.
Video recordings of the ED patient encounter would be one remedy to the issue of documentation on the medical record, says Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of University Hospitals Geauga Medical Center's Chest Pain Center in Chardon, OH.
"Short of this, the only reliable way to support, confirm, or authenticate the completion of a task is through documentation of the medical record," he says.
Memories fade and cannot be relied upon in a courtroom situation months or years after an encounter with a patient. "But the medical record can stand as de facto evidence of the truth," says Garlisi. "After all, why would a physician falsely document the medical record in real time, since he or she would have no knowledge that a lawsuit would be forthcoming?"
In reality, there are constraints to documentation of the ED medical record. One is that the expectations and responsibilities for emergency physicians "have seemingly exponentially expanded," says Garlisi. He points to "time is muscle" and "time is brain" initiatives, electronic health record physician order entry, 30-minute guarantees by EDs, and "one-hour door-to-door" fast track initiatives.
"All of these have placed pressure on emergency staff to see patients faster, and complete the evaluations and treatments in shorter time frames," says Garlisi.
An ED physician may be deluged with several patients simultaneously, with unstable or critical care patients in the mix. In that scenario, it is difficult for the physician to document every phase of each encounter accurately and precisely, if at all, in real time.
"Documentation takes a back seat to the task at handmanaging the sick and dying patients in a safe manner," says Garlisi. "The emergency staff is under the proverbial gun to deliver faster care and achieve a score of 5 on Press-Ganey patient satisfaction surveysall in the face of staff cuts and dwindling resources."
At the same time that demands on the emergency physician have increased, there may be insufficient staff and other resources. "It is easy to understand why documentation can be, and often is, substandard, even with the template documentation systems which are in widespread use," says Garlisi.
"Unfortunately for the emergency physician, any and all aspects of documentation could be a critical piece of information which could make or break the defensibility in malpractice case," says Garlisi.
To the question "Which piece of documentation is critically important?", Garlisi responds, "The critically important piece is the one not done properly or missing completely from the medical record," he says. "In my experience, almost every aspect of medical record documentation can be subjected to scrutiny, and be a significant determining factor in a medical malpractice decision."
Gabor D. Kelen, MD, director of the Department of Emergency Medicine at The Johns Hopkins University in Baltimore, says that there is no doubt that good document can "save the day" in the event of a malpractice lawsuit alleging poor ED care.
"But I would like to seriously challenge that documentation is everything," he says. "I've seen some cases saved by lack of documentation, and I've seen some cases flushed down the toilet, rightfully so, because of documentation."
Kelen has also seen charts where the documentation was lacking, but the ED physician "fell on their sword." "They said that they were lousy documenters but it doesn't mean they didn't do the right thing. Then they testify as to what really happened."
In that situation, it comes down to who is more crediblethe plaintiff who claims the doctor ignored them or the doctor who says he gave good care but just didn't document it.
"The physician may say, 'I had a lot of patients to see. I didn't shortchange this patient, but I didn't get around to documenting everything I did.' If they give a credible account of what happened, often the case either settles for a much smaller amount than it otherwise would have, or they win in court," says Kelen.