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What Nurses Need to Know About Statutes of Limitations.

Do you remember the details of interactions with every patient you cared for two months ago? What about one year ago? The reality is nurses cannot rely on memory to recall details that could make the difference in successfully defending themselves against a lawsuit. After all, most of us can't recall what we had for dinner two nights ago.

The statute of limitations refers to the maximum amount of time between when an incident took place and when legal action can occur. Medical malpractice lawsuits can occur months or years after you last cared for the patient. Remember that following best practices for documenting and retaining records will help protect you in such a situation.

Why statutes of limitations?

Statutes of limitations specify the amount of time between when an injury occurs and when the injured party can file a valid cause of action in court. The intent of limiting this time frame is to promote fairness. After all, memories fade over time and witnesses can become incapacitated or die, making it difficult for the accused person to mount a reasonable defense. (4)

Statutes of limitations vary by state and the nature of the offense, and they can be quite specific. For example, in Arizona the statute of limitations for filing a medical malpractice lawsuit is two years from the date of the injury or two years from the date the patient knew or should have known (3,5) but in California, it is three years or one year from the date the injured party should have known about the injury, whichever is the earlier date. (3,6)

In addition, the time associated with statutes of limitations typically is longer for minors. Most states have statutory provisions that allow individuals to have the same amount of time for commencing legal action beginning after the minor becomes an adult.

Documentation provides protection

As a nurse, it's likely you realize the importance of documenting what treatment you have provided, but it's easy to forget-or not document completely-when you're caught up in a busy workday. However, not recording key information makes it more difficult for an attorney to defend you in the event of legal action.

Protect yourself by documenting patient interactions, whether they occur in person, on the phone, or electronically. Use the tips in Documentation tips, (see sidebar), to remind yourself of what and how to document. Consider the tips to evaluate whether your documentation meets professional standards and legal requirements and make improvements to your practice as needed.

Retaining records

Because of statutes of limitations, you could be named in a lawsuit long after your last interaction with a patient. That's why it's important to retain records based on state and federal laws and regulations.

The Health Insurance Portability and Accountability Act requires the retention of records that contain protected health information for six years after the last visit. This rule preempts state laws that might require less time. Some experts recommend keeping records for as long as 10 years. In the case of minors, experts recommend keeping records until the child reaches the age of majority (adulthood) plus the maximum the length of time your state defines as the statute of limitations.

Shield your nursing practice

Statutes of limitations provide some protection against lawsuits years after you see a patient, but they also provide ample opportunity for lawsuits by individuals who may no longer be a patient. Help protect yourself from liability by documenting completely and retaining records that can provide evidence of your care.

You can find information about state and federal requirements related to retention of medical records at www.healthinfolaw.org/topics/60.

Resources

(1.) Nurses Service Organization. Do's and don'ts of documentation. https://www.nso.com/Learning/Artifacts/Articles/Do-s-and-don-ts-of-documentation?refID=iiWLTNPi. Accessed March 13, 2018.

(2.) Nurses Service Organization. Defensive documentation: Learn how good charting can protect you from liability. https://www.nso.com/Learning/Artifacts/Articles/Defensive-documentation-learn-how-good-charting-c?refID=iiWLTNPi. Accessed March 13, 2018.

(3.) Larson, Aaron. Statute of limitations by state for civil cases. Expert Law website. https://www.expertlaw.com/library/limitationsbystate/index.html. Published November 6, 2017. Accessed March 13, 2018.

(4.) Spero SJ, Cohen PL. Boundary violations and malpractice litigation. Psychiatr Times. 2008;25(4). www.psychiatrictimes.com/articles/boundary-violations-and-malpractice-litigation. Published April 1, 2008. Accessed March 13, 2018.

(5.) Arizona Revised Statutes. Ariz. Rev. Stat. [section]12-542. https://www.azleg.gov/ars/12/00542.htm. Accessed November 27, 2018.

(6.) California Civil Procedure Code [section]340.5. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=340.5 Accessed March 14, 2018.

This risk management information was provided by Nurses Service Organization (NSO), the nation's largest provider of nurses' professional liability insurance coverage for more than 550,000 nurses since 1976. Arizona Nurses Association (AzNA) endorses the individual professional liability insurance policy administered through NSO and underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. Reproduction without permission of the publisher is prohibited. For questions, send an email to service@nso.com, call (800) 247-1500, or visit www.nso.com.

Jennifer Flynn, CPHRM, Risk Manager, Nurses Service Organization (NSO)

Documentation Tips (1,2)

Follow these tips to help ensure that complete documentation--not your memory--protects you in the event of legal action in response to a complaint from a patient.

* Check that you have the correct chart before you begin writing.

* Make sure your documentation reflects the nursing process and your professional capabilities.

* Chart promptly. If you wait until the end of your shift, you could forget to include important information.

* Chart in chronological order, specify exact times, and do not chart ahead of time.

* Keep comments factual, objective, and complete to avoid any perception of bias.

* Write clearly and concisely. Avoid using words, such as "appears" or "apparently," when describing signs and symptoms or imprecise descriptions, such as "bed-soaked" or "a large amount."

* Document all communications: face-to-face, electronic, and by telephone.

* Don't chart a symptom, such as "c/o pain," without also charting what you did about it.

* If you make an error when documenting, make the correction, noting the date and time of the correction.

* If you remember an important point after you've completed your documentation, chart the information with a notation that it's a "late entry." Include the date and time of the late entry.

* Adhere to documentation requirements in states where you practice, your organization's policies, and professional standards. If there's a conflict, use the most rigorous requirement.
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Author:Flynn, Jennifer
Publication:Colorado Nurse
Date:Aug 1, 2019
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