Charting: The Legal Aspects


By Pat McLean, Executive Director

A complete, accurate and up-to-date chart is the primary and most fundamental means of communication among the various members of a health care team. 1 While the most important purpose of documentation is communication, 2 the potential usefulness of the record in protecting the nurse from ill-founded accusations of negligence or other improper conduct is almost as important. 3

Since 1970, when the Supreme Court of Canada ruled in the landmark case of Ares v. Venner that nurses' notes were admissible into evidence as prima facie proof of the truth of the facts and events recorded if they were " made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record", 4 the patient's chart has become an important legal document that can provide either a major weapon to a plaintiff or a formidable defence to a defendant 5 in a court of law.

The Ares case arose out of a weekend skiing accident. G, a 21 year old student, was admitted to a rural hospital emergency room with a comminuted fracture of the right tibia and fibula. Dr. V. operated to reduce the fracture. He applied a toe to upper thigh cast. From the time the cast was applied until the patient was transferred to a larger facility on Thursday, the nurses carefully documented their observations: the patient's toes were numb, swollen, blue, there was no movement in them and they were insensitive to pinpricks or pinching. Tuesday, they were cool to touch. Dr. V. split the cast on Wednesday. The specialists who saw G. in Edmonton found marked ischemia in the fracture site with extensive muscle and nerve damage necessitating amputation.

G. sued Dr.V. and the rural hospital, including its nurses. The case against the nurses and the hospital was dropped, however, due to the thorough charting of the nurses' observations and their timely communications to the physician. The lawyer for the physician tried to have the nurses' notes excluded from evidence. The Supreme Court's ruling that the notes were admissible as proof of the facts was fatal to Dr. V.'s case and he was held liable to the plaintiff.

In a 1993 Ontario case, 6 an emergency room physician and a general practitioner were both found negligent for failure to adequately respond to the nurses' notes.

A man was brought to the hospital by his wife because he was hallucinating. The admitting nurse recorded that the patient presented with "dementia NYD", that he was a "psych-pt", that he was "hallucinating, paranoid - no hx of psych problems". She also recorded on the Nursing Record that the patient's wife had stated the patient was "hallucinating, paranoid, suicidal" and that he looked "dehydrated - very paranoid and vague". He was seen by an ER physician, his general practitioner, a psychiatrist and an internist. Two days later, he jumped or fell through a closed seventh floor window in his hospital room and sustained severe permanent injuries. He sued the physicians, the hospital and the nurses for failure to prevent this incident.

Again, thanks to the nurse's documentation, the case against the nurses and the hospital was dropped. The Emergency Room doctor was found negligent for failure to make a risk assessment of the patient based on "the urgent nature of Nurse D's note." The judge held that "nurses notes must form the basis or starting point for an emergency room doctor's opinion, and of course the treatment he subsequently renders." The general practitioner was also found negligent because he "failed to read and respond adequately to the nurses' note by not ordering more direct and stricter supervision of Mr. S." 7

Incomplete charting and a communication book that highlighted problems in an emergency department provided a major weapon to the plaintiff in the tragic case of Lahey v. Craig.8 A 55 year old lawyer suffering an asthma attack was brought into emergency by his wife. The court attributed his death to the negligence of the hospital.

He was assessed by a nurse and an emergency room physician on admission and a Ventolin aerosol with oxygen was ordered. When the nurse went to get the Ventolin from the crash cart, it was not there. Several nurses went looking for it, but none was found. They called the respiratory therapist (RT), who also spent some time looking for Ventolin before going to get some from his department, which was some distance away. When he finally returned, he started the aerosol on air instead of oxygen. The patient went into respiratory arrest.

The judge stated that "The patient's clinical record or chart...should provide quick and accurate answers to any questions any interested party would ever ask about the care and death of a patient. That unfortunately is not the case with the chart of Mr. L. (His) chart has omissions, inaccuracies, errors, uninitialed alterations and other deficiencies. Dr. C. made no entry at all on the chart. The nurses who were actively involved in the search for Ventolin and treating Mr. L. made no notes on the chart."

Justice McLennan found "the nurses' notes and code sheets are very superficial and incomplete. They make no reference at all to the problems in relation to Ventolin, to the comatose state of the patient or to when blood gases were obtained. Monitor strips, requisition forms and a vital sign sheet that should have been on the chart and could have helped confirm precise times are missing."

The judge ruled that these omissions were "intentional" and "an attempt to conceal the true causes of the death." He noted that the doctors and nurses making these "intentional omissions" had not only violated hospital policies but had "probably violated professional codes of conduct". He went so far as to suggest that two of the physicians and one of the nurses may have "exposed themselves to the possibility of criminal prosecution for making false documents".

The communication book contained entries by nurses to co-workers that indicated problems with supervision, finding medications, stocking the crash cart, caring for equipment, loss of equipment and theft of drugs by the public. The judge was left with the impression that "On evenings, nights and weekends no one was really in charge of the nursing staff in the emergency room." 9

Liability for the death of Mr. L. was attributed to the hospital administration and the RT. The court found that the missing Ventolin was due to the serious unresolved problems with the way the emergency room was run, which was not the fault of the nurses working there that night. The two doctors who cared for Mr. L. in the ER that night were not negligent but had to pay their own court costs as a penalty for their failure to chart what happened.

These cases demonstrate that health care records admitted as evidence in a court of law will be scrutinized closely, 10 be they patient records, Kardexes, communication books, letters between professionals, incident reports or any other relevant documentation. The scrutiny may be by a hospital committee, a professional disciplinary body, an inquest, a judicial inquiry, or a court, and may relate to a particular incident or a series of incidents. It may relate to more than one patient. An audit or review of patient records is an important mechanism for determining the quality of care provided by an institution and it may be the only way in which errors or accidents are discovered, so that action can be taken to prevent their occurrence in the future.11

It is essential that nursing notes be prepared in an accurate, timely and professional manner. 12 The completeness and accuracy of your notes will not only increase the credibility of your notes but will have a direct bearing on your personal credibility. 13

Following these charting guidelines should help to protect you and your patients:

  • charting should be consistent with your employer's written policies
  • if you did it, or saw it, you should record it
  • if you did not chart it, you did not do it
  • record interactions with staff members or doctors, including failed attempts to reach them
  • record clearly, legibly, accurately and use proper terminology
  • draw a line through errors, note it was an error and initial it. Do not erase an error or remove pages
  • record in ink and sign appropriately 14

The Canadian Nurses Protective Society (CNPS) also has a helpful infoLAW bulletin, Quality Documentation: Your Best Defence, available free of charge.

References:

  1. Sneiderman, Irvine and Osborne, Canadian Medical Law (2nd ed.) Carswell, 1995, at p. 173.
  2. College of Nurses of Ontario, Nursing Documentation Standards, 1997, p.5
  3. Note 1, supra, at p. 173.
  4. Ares v. Venner, [1970] S.C.R. 608
  5. Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada (3rd ed.) Carswell, 1996, at p. 400
  6. Skinner v. Royal Victoria Hospital, [1993] O.J. No.1054
  7. Ibid.
  8. Lahey Estate v. Craig, [1992] N.B.J. No. 110
  9. Ibid.
  10. Morris, J.J., Law for Canadian Health Care Administrators, Butterworths, 1996, at p. 76.
  11. Rozovsky, Lorne and Rozovsky, Fay Adrienne, Canadian Health Information, (2nd ed.) Butterworths, 1992, at p. 10.
  12. Morris, J.J. Canadian Nurses and the Law, Butterworths, 1991, at p. 66.
  13. New Brunswick Nurses Union, Charting, A Guide to the Law, 1992.
  14. Ibid.

Note: This article has been reprinted with permission from Canadian Nurse (entitled "The Significance of Good Charting"), November 1997.

All articles appearing in this section are for information purposes only and should not be construed as legal advice. Readers should consult legal counsel for specific advice.

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