1. Miller, Lisa A. CNM, JD
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Questions about documentation are some of the most common questions at any seminar dealing with medicolegal issues for nurses, midwives, and physicians. While documentation practices vary widely both between and within specialties, there are some universal precepts that can provide all clinicians with a good foundation for charting, whether using flow sheets or progress notes, paper or electronic records. This column will address 5 of the most frequent questions from the author's experience as a perinatal educator and risk management consultant. The questions are in no particular order, and the answers reflect the author's own opinions based on more than 30 years of serving as an expert witness in obstetric litigation, including both plaintiff and defense.



The short answer here is maybe. Appropriate late entries, such as a narrative summary following an emergency, can be crucial to defense of a case. On the contrary, entry made days later, or additions to the labor record following deterioration of a mother or newborn in the postpartum period that can be portrayed as self-serving, or defensive, can impact the credibility of the nurse or the provider. Although the ultimate arbiter of whether a late entry was reasonable (the standard of care) is the jury, both defendant testimony and expert opinion on the timing of documentation entries can certainly influence the jury's opinion. While most hospitals have policies on how to record a late entry, very few hospitals have written policies regarding what actually constitutes a late entry in relation to timing. For this reason, nurses and providers should have a routine or standard practice pattern that they follow consistently. Juries would likely see a 1- to 2-hour window as reasonable for documentation, with anything recorded later than 1 to 2 hours after the fact logged as a late entry, but few juries would accept entries made the day after an incident or a nurse doing all charting at the end of shift as reasonable. The bottom line is that when in doubt about the timing of an entry, do not hesitate to flag it as a late entry, and unless your risk management department gives you the green light, never document in a record the next day or days later. It is much easier to explain why documentation was not complete versus why entries were made days later following a poor outcome.



The "if it wasn't charted it wasn't done" myth continues to have traction, especially in nursing circles, although there is no legal basis for the statement; it is completely false. While it is true that the plaintiff attorney will have only the medical record and the family's story to rely upon when determining the particular merits of a case and making a decision to file a lawsuit, once litigation is initiated, the defense has a number of options for providing proof at deposition or trial. In addition to the medical record, the defense can utilize testimony on the basis of what defendant nurses and providers recall or remember from caring for the patient, as well as testimony regarding the defendant nurse or provider's usual or routine practices. While a complete and detailed medical record is best, there are other avenues for offering proof of care during litigation.



Chain of command, or chain of communication, is an important tool for all professionals when questions regarding a plan of care or patient management arise. The most effective method for documenting initiation of the chain of communication is simply documenting the facts. For example, if a nurse has a question about oxytocin management and is not completely satisfied with the response provided by the midwife or the physician, the nurse may be obligated to utilize chain of communication and get a team leader or charge nurse involved. Documentation might look like this:


Discussed oxytocin and uterine activity with Dr. Brown. Nurse Winkler notified to review tracing and uterine activity. (Jim Smith, RN)


In this case, Nurse Winkler is the next step in the chain of communication. When utilizing chain of communication, the nurse is simply getting clarification for a plan of management or a situation, and the additional input may or may not alter the plan of care. A discussion regarding a plan of care should not be viewed by any of the healthcare team as an argument, and documentation needs to reflect the professional approach of the team in a factually accurate and emotionally neutral manner.



Again, the short answer here is maybe. When the phone conversation is simply a routine update regarding patient's status and management plan, a verbatim record is not necessary, as nurses should be able to testify as to routine practice regarding communication of patient's status, such as including fetal monitoring findings and labor status whenever reporting to providers. But when there are specific issues or a very detailed plan of care, more detail of the phone conversation is warranted. And in any cases in which a midwife or a physician is asked to come to the bedside, that request should be included in the documentation, along with appropriate follow-up (an additional call, reaching out to another provider) should a timely response be lacking. In general, very little documentation ever needs to include verbatim statements by either the nurse or the provider, and simply having routines for communication that ensure all pertinent information is included when updating providers on patient's status will suffice.



Categories for electronic fetal monitoring tracings are summary terms that have little value outside of replacing the previously used terms "reassuring" and "nonreassuring" that were discarded as vague and nonspecific. Unfortunately, some hospitals are requiring the documentation of categories, which can lead to conflict and confusion later in deposition and trial. Categories can always be determined from the documentation of fetal heart rate (FHR) tracing components, such as baseline rate, variability, accelerations, and decelerations, but the reverse is not true, as documenting that an FHR tracing is category II tells one nothing about the FHR components. In addition, many institutions require the nurse to document an FHR category every 30 minutes or hourly, which can lead to confusion and conflict. Since there are three 10-minute segments in a 30-minute period, 6 in an hour, which 10-minute segment should dictate the category? The first? The last? Should the nurse try to assign the category on the basis of the majority of the segment reviewed? And will all the nurses answer the question of how to chart categories in the same way? One begins to see how confusing the situation can become when clinicians are required to chart categories. The best approach is for all clinicians to know the categories but limit their documentation to the FHR components.



Documentation questions are always at the top of the list at medicolegal programs, and there will always be wide variations in documentation approaches between and even with specialties. Some of the more common documentation questions have been included here, with suggestions for documentation that promote clarity and reduce conflict. Conflict in the medical record is always problematic for the defense, and charting approaches and practices that are factually accurate and standardized can be very helpful in promoting clarity. All nurses, midwives, and physicians can benefit from application of critical thinking about their documentation practices, and hospitals are best served by setting reasonable guidelines for documentation that help clinicians create a medical record that provides clarity for the defense, not confusion.


-Lisa A. Miller, CNM, JD




Perinatal Risk Management and Education Services


Portland, Oregon