We were grateful to be able to spend time talking about the legal aspects of documenting a nurse telephone triage call with Barbara Hansen, Legal Nurse Consultant with Medical Resource Network. We hope it’s interesting and informative for you!
Here’s an overview of our conversation:
- Barbara’s Background
- The Purpose of Clinical Documentation
- Clear, Concise and Credible = Good Documentation
- The Four Elements of a Successful Lawsuit
- Do You Need to Document Negative Triage Questions?
- Perception of Nurses During a Trial
- Late Documentation Guidance
- Wrapping Up
- Medical Resource Network
ClearTriage: Before we get started, could you describe your background as it relates to this topic? I’d like to give our readers a sense of your experience in this area.
Barbara: Certainly. I have been a nurse for over 35 years and a legal nurse consultant for over 25 years. I worked at a defense law firm for many years and have also assisted claims managers and risk managers in assessments of cases. I have been with Medical Resource Network for the past 11 years.
ClearTriage: How did you wind up becoming a legal nurse consultant?
Barbara: My original background was working in a hospital with a specialty in complex perinatal nursing. While at the hospital, I became involved with the education department and did a lot of teaching of perinatal nurses and became very familiar with fetal monitoring. I was referred to a law firm that was specifically looking for an OB nurse with that background. I interviewed and, not really knowing exactly what it was that I would be doing, I took the job. I was ready for a change and it ended up being a perfect fit for me because I like both research and education.
ClearTriage: I’m glad to hear that! Since we’re talking about documentation in the EMR, could you give me an idea of how many records you’ve reviewed as a legal nurse consultant and how many cases you’ve been involved with?
Barbara: That’s a really good but really tough question for me to answer. At my first legal job I provided support for 20 cases that actually went to trial in Houston. That involved being very familiar with the medical records and knowing where to find the information that was needed for any witness that might be on the stand. That provided me with a great understanding of how cases end up in court.
I have probably looked at hundreds of thousands of pages of medical records through the years. Interestingly, with the advent of the electronic medical record, what used to be ten pages of records is now probably fifty. Which is one of the reasons I would say hundreds of thousands of pages in the years that I’ve been doing this. I think the average number of pages in a case that we have might be 1000 to 2000, but we had one case that actually had 100,000 pages of records.
ClearTriage: Wow! That’s a lot of great experience that can help nurses and organizations wondering how to best document nurse telephone triage calls. Before we get into the details of managing risk in that documentation, can you talk about the general purpose of documentation in a patient’s chart?
The Purpose of Clinical Documentation
Barbara: Of course. Documentation is very important for communicating with other providers involved in that patient’s care. Whether a nurse needs to read what the physician has documented or vice versa, it is a very important real-time process in patient care. And the EMR definitely facilitates that communication.
ClearTriage: That makes sense. As we talk to our users about how they want to document calls, it seems like there is a balance between communication and liability risk. On one hand they want to effectively communicate what was happening on that call with the other caregivers who might see that patient. This means they want to convey enough information but not too much so that the other people stop reading. At the same time they’re wondering if they’re including enough in the note to cover themselves from a liability standpoint. Are communication and limiting liability risk the two main purposes of documentation?
Barbara: I think those are the two primary ones. And I think you are absolutely right that there is a balance between providing the very important information that you want the next person that is reading your documentation to key in on and not have a lot of extraneous information. One thing that’s happened with the EMR is sometimes it is very difficult to find that critical information. Being concise and to the point is really important because people will get frustrated and stop reading if they can’t find the critical information.
Clear, Concise and Credible = Good Documentation
ClearTriage: You’ve seen a lot of documentation. How would you describe the elements of a good clinical note?
Barbara: Good clinical documentation demonstrates the three Cs. It is clear, it is concise (like we talked about without a lot of extraneous information), and it is credible. Credible means somebody who reads the note would think the writer is a person they would believe.
When using a tool like ClearTriage, the triage nurse needs to be thinking most about the content of the narrative note. They need to make sure that part of the note is clear, concise, and credible. The other documentation, just by the nature of being protocol-driven and automatically generated, will meet that criteria.
The nurse needs to think about what that narrative is going to look like to others. Not only to the next caregiver, but six months or a year from now when the nurse that created that note might have to review it.
ClearTriage: What kinds of things make a note appear credible?
Barbara: Things like using appropriate medical terminology, not outdated medical terminology. Using appropriate abbreviations, not making up abbreviations. Nurses don’t typically make up abbreviations but sometimes interns and residents do so and it is not always clear what they mean. Using appropriate punctuation helps it be both clearer and more credible. Not using exclamation points, not using any inflammatory language, being very factual.
ClearTriage: Being professional rather than chatty?
Barbara: Yes. And avoid jargon or slang. It is one thing if a patient says something and that is put in quotes. Then it is clear that was the term the patient used. In fact, that provides a much clearer picture of the conversation.
ClearTriage: So if a nurse is talking to a parent and the parent is describing a tummy ache, if the nurse uses those words they should put them in quotes. The nurse should not describe abdominal pain as a tummy ache because that is not medical terminology.
Barbara: Exactly. A nurse has a degree of education that the patient does not have and that should come through in the documentation. It is clear the nurse knows what they are talking about because they are using correct medical terminology.
The Four Elements of a Successful Lawsuit
ClearTriage: What if something goes wrong and there is a bad outcome connected to a triage call? What would need to have happened for a lawsuit to be successful against a medical organization, a practice, or a nurse?
Barbara: States have statues that govern professional liability and the same four things have to be proven in any state. A jury has to see those four things as present for that case to actually end up with a verdict on behalf of a patient or family. These four things are called the elements of negligence. The first element is there has to have been a duty to the patient. This is usually very easy to prove. The patient gets admitted to the hospital. The nurse is assigned to take care of that patient on a particular shift. In telephone triage, this starts when the patient picks up the phone and calls the triage nurse line and the nurse picks up. That nurse has a duty to the patient. It is hard to think of a circumstance in telephone triage where this would be in dispute.
ClearTriage: What if you have a dedicated line that is intended to serve the patients of a particular hospital or practice and someone calls in who is not a patient? The nurse says, “I’m sorry, I can’t help you. I would suggest you go to the ED or do this.” I have heard it argued that the fact that you have started that conversation means you have engaged with them so you do have a duty to help them.
Barbara: Right. Nurses have professional standards that are both learned in school and then codified in the state statutes. I think once the call is made, then the nurse has a duty to do the next right thing.
Once duty to the patient is established, the next question is whether there was a breach in that duty. Did the nurse do something that he should not have done or fail to do something that he should have done? Legally this is described as omission, doing something that should have been done or commission, doing something that should not have done. Maybe he tells the patient, “I think you’re going to be fine, just monitor or take your temperature in six hours” when there might be a question should the nurse have actually said, “You need to go to the emergency room or you need to call 911”. This is where disputes come in and the questions become more difficult to answer.
It is important to understand that the nurse is judged by a reasonable standard; what a reasonable nurse would have done under the same or similar circumstances. Every nurse I have ever met wants to give what I call A+ care. Perfect care. That is what we strive for, but that is not what the law requires. The law requires that a nurse provide reasonable care.
ClearTriage: So it does not need to be perfection?.
Barbara: No. You teach the ideal because that is what you want people to reach for. Some days I am sure nurses feel like they gave great care and other days they are just grateful that they were able to speak with everybody that called. They should not be beating themselves up if they did not give perfect care to every patient. It does not mean that is not what we strive for. It is just that this is not what the law requires. This applies to all professions: physicians, physical therapists, etc. Nurse experts are called to testify and say, “I think this nurse gave reasonable care” and someone else on the other side might say, “No the nurse did not”, then the jury gets to decide who they think is the most credible expert. That is the second element that has to be proven. If the jury does not think anybody did anything wrong, that is where things end.
ClearTriage: You have talked about the duty to the patient and the breach of that duty by not providing reasonable care. What else needs to be proven?
Barbara: The third element is called proximate cause and that means that whatever was done or not done actually caused injury. Let’s say a nurse fails to ask a specific question, or the nurse cannot remember if she asked it. That may not have caused an injury. There are all kinds of examples where not asking something has nothing to do with the fact that the patient ended up having a heart attack. The two aren’t related. Perhaps the nurse should have asked about the temperature, but it has nothing to do with what actually happened to the patient. There has to be a link, or a jury has to believe that there is a link, between the breach and the injury for a suit to be successful.
The last element of negligence is the patient has to have suffered damages. Maybe he has a scar he would not have had, lost a limb that he would not have lost, or has a shortened life expectancy. Damages is the legal term used. The only way we have to compensate people in civil lawsuits is to give them money to compensate for what has happened to them. Healthcare professionals do not go to jail related to the care that they have provided unless they have committed a criminal act. It has to be proven to the jury that there actually is damage. The damages can be pain and suffering. It is difficult to define because nobody can quantify someone else’s pain and suffering. But the jury is asked to decide how much to compensate a person.
Those are the four elements of a successful lawsuit. Nurses need to concern themselves with number two when they’re caring for patients, whether providing telephone triage or direct patient care. Did they meet the requirement of reasonable care?
ClearTriage: So nurses strive to give perfect care but in court the standard they need to meet is that they gave reasonable care.
Do You Need to Document Negative Triage Questions?
ClearTriage: It is really helpful to understand what would need to be proven in the event of a lawsuit. If we can switch topics, I would like to explore one of the most common questions our customers have about documenting triage calls. The Schmitt-Thompson telephone triage protocols are set up as a checklist with questions in descending order of acuity. The nurse is responsible for ruling out each item in the checklist until they get to the first positive question.
Nothing I just said causes any debate. What people will ask about is whether they need to document all of the negative questions leading up to that first positive question. To provide a little more detail, they want to know if they should document just that first positive question and then have the policy of their organization say that you always use the triage protocols and that you only document the first positive question. Or do they want to document all of the negative answers as well as the first positive? What are your thoughts on the need to document the negative questions?
Barbara: I think two things are important. First, the policy for the organization must be very clear. If the policy is to document only the first positives this needs to be clearly followed. Secondly, that nurse needs to be able to say that because they are using the protocol that means they are going to rule out all of the questions until that first positive, getting the information from the patient during the initial assessment or through a direct question. If those things are both true then I don’t think there’s any reason to document negatives. But the second thing I mentioned is really important. The nurse should be able to truthfully and confidently say a year from now, two years from now, this was my routine practice.
Nurses should never be expected to document everything. That would take away from listening to the patient and put the focus on documentation, which is not where it should be. The primary focus is taking care of the patient. The nurse should be able to say two years from now, this was my practice and this is what I would have done, this is what I have always done. No, I don’t remember this particular person specifically, but this is my routine practice with every patient that I talk to on the telephone. This was our organization’s policy, and I have always followed that policy.
ClearTriage: That makes sense. There is a related issue that has always concerned me. I am curious as to your opinion about it. If an organization decides to capture the negative questions in the documentation, ClearTriage displays Yes and No buttons in front of each triage question. The nurse can select the No button for as many or as few questions as they want. Some organizations comment on how many negative questions might exist before the nurse reaches the first positive. They will tell me that with all of those negatives it becomes an overwhelming note, so they are going document only the “pertinent” negatives. That has always struck me as legally dangerous.
Barbara: I was just going to use the word “dangerous”.
ClearTriage: Right. It is potentially dangerous if the patient has a problem and that happens to be related to one of the questions that you decided wasn’t pertinent to document. Even if you asked that question and ruled it out, if you didn’t mark it as No, it might be harder to explain convincingly that you did rule that out.
Barbara: There is certainly the potential for that to happen. Consider if you got asked about this call a month or a year from now, would you remember why you decided that particular question wasn’t pertinent to document? It is unlikely you would. A nurse on the floor might remember I did this for the patient and then two hours later the patient arrested. That nurse is probably more likely to remember those events because of the significant thing that happened. Will they remember the specifics a year from now? Probably not, which is where documentation is helpful. But a triage nurse is even more disconnected with the next step in caring for that patient. I think it is very dangerous because it would be very difficult to explain that yes, of course I asked that but I only chose to document these other questions.
ClearTriage: So in general it seems like if you are going to choose to turn on those Yes and No buttons and document the negatives, you probably want to document all of the negatives.
Barbara: Yes. And on a related note, if you are only documenting the positives then there should be a note about which protocol was used and unless it was a positive question, I have not documented the questions in that protocol.
Barbara: Perfect. I think that’s a great way to approach that.
Perception of Nurses During a Trial
ClearTriage: I have a couple other things I wanted to talk about. First, how are nurses perceived during a trial, how do juries view nurses?
Barbara: Juries are taken from the general population and the general population in the United States views nurses very, very positively. Nurses are held in very high regard by people unless someone has had a bad experience with a nurse, which is very rare. Nurse start out ahead. Let’s say a triage nurse has to go to a courtroom and tell the jury about what they recall or what their documentation tells them. The jury is going to start out assuming that this person is telling the truth, cares about what they do, and loves what they do. That’s how juries perceive nurses and they love hearing from nurses. Patients will tell nurses things that they might not tell another healthcare provider.
Barbara: Right, and it is something that can really help nurses bring their anxiety level down when they are having to give a deposition or testify. I have worked with lots of nurses over the years preparing them to give testimony and it helps them to be reminded of that.
Late Documentation Guidance
ClearTriage: There are times that things can get very busy for a telephone triage nurse. While not ideal, sometimes calls do not get documented immediately after they take place. Any guidance on what to do in this circumstance?
Barbara: Yes, and I think this is a place where the credibility piece is really important. One thing that can help a late entry be credible is that the date and time the documentation is being made is very clear, so there’s no attempt to make it look like the documentation was being made at the time that the call took place. Make sure it is clear what date and time the documentation was entered, the date and time to which the entry is referring, and then the reason the documentation is being made late. A great note that I have seen in a hospital setting was that it was a late entry due to patient’s acuity. Basically saying I was providing care to the patient, I couldn’t get to the computer. Not the fact that you had call after call. A nurse doesn’t want to document something in the record that would cause someone to want to pull all the other patients’ records from that day or from that hour or two.
For example, “This was the first time I was able to open the patient’s chart again to complete my documentation”. That would help the nurse a year from now say, I cannot tell you specifically why, but I got back to the chart as soon as I could while the information was still fresh in my mind. Obviously that is a much better, much more believable reason if it is in the same shift, as opposed to somebody coming back three days later.
ClearTriage: Let’s say you handled several triage calls and then found out a few days later that the patient you talked to had something go wrong. You look at your note and realize it is not as clear as it could have been. Should you add to or edit your note at that point? Or will that make it look like you’re covering something up?
Barbara: That is what it will look like. In those circumstances, I think it is best for the nurse to get in touch with the risk manager and provide the information to the risk manager. This ensures it is protected from discovery by a lawyer for the other side in a lawsuit.
ClearTriage: So if you find out that something went wrong, don’t try and deal with it in the chart. At that point in time, talk to the risk manager or the physician owner.
Barbara: When you say physician owner that concerns me because that would not be a protected conversation. It is best to have someone in the risk manager role. And it might be a physician who is also considered the risk manager. It would be important for that to be well defined so that the attorney that might be representing that practice would be able to say this conversation was privileged. And if not, I would hope that the physician owner would call the practice’s attorney and say we have had this happen and get advice, because that conversation would be privileged.
Barbara: One thing that we never want to see nurses or any other healthcare provider do is make notes for themselves, take them home, put them in their diary. I had a case where the nurse made a bunch of notes and put them in her locker. She did not share them with anybody and those had to be turned over. The nurse was thinking, well, I will have these notes to help me recollect what happened. Those are the kinds of things that it would be best to tell the risk manager.
ClearTriage: Is there anything else you would like to share about documentation that might be pertinent to telephone triage nurses or people managing telephone triage nurses?
Barbara: I think we have covered all the really important issues. I would like to emphasize that when people choose to call a nurse, whether it is in an office or with a big healthcare system, they are generally starting out with a very positive expectation that they are going to get the help they need. Documentation is secondary to providing good care.
ClearTriage: That is very important for everyone to keep in mind.
Barbara: Yes, absolutely. I know many nurses have heard “not documented, not done”. That is not true. Every nurse I have ever talked with has been able to say, this is my routine. I would have done x. It doesn’t have to be written down if it is so routine that it is what you would always do.
ClearTriage: And the routine for the telephone triage nurse is to use the protocol.
Barbara: Exactly. Follow the protocol with the questions in descending order of importance. You are going to address the most critical things first and not bother with the other things.
Medical Resource Network
ClearTriage: I really appreciate everything you’ve shared and the wealth of knowledge that you bring here. You’re working these days at Medical Resource Network. What can I share with the people who’ll be reading this about MRN?
Barbara: MRN is nurse consulting company that has been in business since 1993. We employ nurses with incredibly diverse backgrounds. If I am working on a case that may not be something I have worked on before, there are all of these great resources available to me. I think that’s one of the best things about working here, and one of the many reasons for someone to choose to use MRN’s services. We will have the right nurse to assist with the development of your case and the review of the medical records.
All MRN nurses have very strong health science education and clinical backgrounds. We all understand the legal process. We look at cases from that perspective and we can see where the pitfalls or the problems might be in a case. We can help provide defense approaches to the attorneys working on the case. A lot of cases get addressed before they ever get to the litigation stage. We assist with that early claims resolution process. Our goal is to not only help our client, but ultimately to help the patient or the patient’s family to get things resolved early and not have things drag on. We really pride ourselves on assisting with early resolution.
ClearTriage: If an organization did wind up with a bad outcome on a telephone triage call and it was turning into a suit or had turned into a suit, you could be a resource to help them and their attorneys in the defense of that case?
Barbara: Yes. We can assist with reviewing and analyzing medical records and finding the right expert to help them. Medical experts, physicians, nursing experts that they might need if the case moves forward. We maintain a data base of over 1800 experts, carefully vetted over our 25 years in business. We can be trusted to provide the highest quality work.
ClearTriage: I hope our customers never have to use your services, but it is good to know that MRN is there if they need you!