Documentation perils.

According to the March/April 2003 edition of Health Affairs, "[A]mong nursing home claims resolved out of court, 88 percent involved compensation payment to the plaintiff, nearly three times the rate of typical medical malpractice claims." The longer a resident resides in a facility, the greater the chances for allegations of poor care. Rather than alleging a specific act of negligence, attorneys will often allege general facility-wide patterns of substandard care or understaffing. They may focus on a bad outcome and link it to the facility's systemic inability to follow policies and procedures for administering care. Resident records serve as the foundation for the vast majority of claims against nursing homes.

The following case study by Kendall Watkins, JD, of Davis, Brown, Koehn, Shors & Roberts, PC, of Des Moines, Iowa, illustrates the extent to which documentation affects a facility's ability to defend itself. Please take the time to review the circumstances surrounding the situation and make changes as appropriate at your facility.

The Situation

A resident was admitted to a SNF following a hip fracture. She received skilled rehabilitative care before she was transferred to the Medicaid-certified wing, where she resided for more than two years. During that period, she fell 18 times. None of the falls resulted in serious injuries that required either physician intervention or hospitalization. In fact, the only injuries she sustained were minor bruises and skin tears that resolved quickly with no complications.

Four days after her last fall, the staff noted that the resident had a fast-growing hematoma on her hip that they felt was unrelated to the fall. The doctor was promptly notified of the assessment, and the resident was immediately hospitalized. To stop the internal bleeding of the hip, her physician held her warfarin, which had been prescribed to treat deep vein thrombosis and past strokes. Shortly thereafter, the resident suffered a massive stroke and died several days later.

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Almost two years after the woman's death, her children filed suit against the facility, alleging numerous and broad allegations of negligence. They also asserted a claim for punitive damages, alleging that the facility's conduct and inadequate care constituted willful and wanton disregard for the rights or safety of the resident. Their attorneys conducted extensive discovery, including massive and far-reaching production requests, interrogatories, and depositions of current and former employees and family members. They also obtained public records from several sources, including state survey inspection reports, the facility's complaint survey history, and resident advocacy committee minutes.

During the discovery phase, the attorneys on both sides uncovered in a personnel record that one of the facility's employees had been fired for slapping the resident. The incident was not reported to the state regulatory department, the resident's physician, or the family. When it was brought to the trial judge's attention later, he instructed all witnesses and attorneys not to refer to the slapping incident as "resident abuse."

The plaintiff's final demand to settle the case was for more than $700,000, which the defense rejected, so the case went to trial. During jury selection, the plaintiff's attorneys planted a seed that this was going to be an expensive case by asking potential jurors if a million-dollar verdict would be out of line in a nursing home malpractice case.

During the trial, evidence was submitted to the jury that the resident's care plan flow sheets had gaps in the documentation, indicating that certain care services were not provided. Inversely, a flow sheet also was submitted to the jury showing that several nurse aides documented that they provided care to the resident, even though she was in the hospital at the time. Additional problematic documentation included missing files and allegations of noncompliance with written facility policies and incomplete records. The facility was also saddled with a care plan that despite numerous falls, had not been amended or revised to address the resident's fall risk.

In the end, the jury concluded that the facility did not contribute to the resident's death and did not award any damages for medical expenses, loss of function, or loss of consortium to her surviving family members. However, they did conclude that the facility was negligent in its care of the resident (presumably because of the 18 falls and slapping incident), and $200,000 was awarded for her pain and suffering, as well as $62,000 for the facility's breach of its occupancy agreement and $100,000 for punitive damages. After the trial, a juror indicated that the flow sheets showing care provided after the resident was transferred to the hospital effectively discredited any of the remaining documentation or facility witnesses that the defense had to offer.

Risk-Management Steps

Complete and proper medical record documentation is important because it permanently reflects that the nursing care being provided meets professional standards by noting the progression of services, care, and monitoring provided to residents. In addition, it serves as the primary communication format to direct and coordinate services between the numerous professionals involved with the resident's care. A facility's ability to adequately defend itself in the event of a lawsuit largely rests on the accuracy and extent of the documentation regarding the incident in question. Please review and implement the following recommended steps:

* Nursing staff should receive in-service training during orientation, and as needed, on the importance of medical records and the documentation standards they are expected to maintain.

* Random record reviews and audits should be completed routinely to ensure compliance. Noted deficiencies should be handled by individual counseling and/or further staff training.

* Documentation forms should be reviewed to determine if the documentation is required by regulation, standard of practice, or facility policy. For example, care plan flow sheets are not mandated by regulations; it's easier to defend nurse's notes that are documented by exception. Facilities should consider revising or discontinuing forms that do not further the goal of quality care and cause more headaches than benefits.

* Documentation about incidents involving residents should consistently reflect clinical observations, nursing interventions, resident response to nursing care, and appropriate periodic reevaluation following any incident.

* All family and physician notification of any incidents, change in condition, alteration of treatments, and/or roommate/room change regarding the resident should be documented in a timely manner.

* Objective facts about the incident should be recorded and a root-cause analysis completed, as applicable. Review investigative protocols in the State Operations Manual, when indicated.

* Record all considerations and attempts to address the problem, even if they are unsuccessful after implementation. Update care plans and provide appropriate staff training.

* Administration should determine whether to report an incident to government agencies and/or law enforcement, as needed.

* The Quality Assurance team should be kept informed, and the team should provide input and follow-up auditing, as appropriate.

* All policies should have an implementation date. Review them routinely and remove old policies, but keep them in an expired policy book for future reference, if needed.

* Document events when they happen so details are captured and the reader is clear about the sequence of events.

By taking these necessary risk-management steps, you can protect your residents and facility, now and into the future.

Linda Williams, RN, is a Long-Term Care Risk Manager for the GuideOne Center for Risk Management's Senior Living Communities Division. She previously served as director of nursing in a CCRC and as a nurse consultant for two corporations with numerous long-term care facilities in lowa. The GuideOne Center for Risk Management is dedicated to helping churches, seniors living communities, and schools/colleges safeguard their communities by providing practical and timely training and resources on safety, security, and risk-management issues. For more information, contact Williams at [phone], ext. 5175, or [e-mail], or visit www.guideonecenter. com. To send your comments to the author and editors, e-mail [e-mail]. To order reprints in quantities of 100 or more, call [phone].

BY LINDA WILLIAMS, RN