It’s likely that someday one of your nursing colleagues will become involved in a professional negligence lawsuit or will know another nurse who is sued for negligence.¹ Your patient’s chart is a legal document that describes his or her encounter with you and other caregivers. Your documentation must provide a complete and accurate accounting of his or her condition and the care you provided.² If you are asked to testify in a legal action, you may need to recall details that occurred months or even years ago. Without a complete, accurate and legible medical record, you may be unable to defend yourself against allegations of improper care.³ Effective documentation can be your best defense if you’re named in a lawsuit and may even help dismiss the lawsuit.⁴

Most lawsuits involving nurses are civil cases that attempt to prove that a nurse’s negligent care resulted in injury to a patient. The law defines negligence as failure to provide a patient with the standard of care that a reasonably prudent nurse would exercise under the same or similar circumstances.^1,5 To prove that a nurse was negligent, the patient’s attorney must prove these four elements:

• The nurse had a duty to provide care to the patient and to follow an acceptable standard of care.
• The nurse failed to adhere to the standard of care.
• The nurse’s failure to adhere to the standard of care caused the patient’s injuries.
• The patient suffered damages as a result of the nurse’s negligent actions.^1,5

If you face an allegation of negligence or improper conduct, your documentation can make or break your case. Your contention that you provided appropriate care is significantly weakened if you didn’t document or if your documentation doesn’t clearly show that you met the standard of care. Without evidence in black and white, as written in the medical record, you must rely on your ability as a witness to convince a judge or jury that you gave appropriate care despite your failure to document the care you provided.¹

Charting errors and omissions are a significant source of liability risk for nurses. During a trial, the patient’s attorney will use documentation to try to prove that the standard of care wasn’t met. A complete and accurate medical record is crucial because appropriate documentation provides evidence that you met the standard of care.^3,5

Laws and standards

The type of nursing information that appears in a medical record is determined by standards developed over the years by state laws, the nursing profession, and accrediting organizations such as the Joint Commission. The U.S. legal system has helped nurses know what must be included to conclude that patient care documentation is accurate and appropriate.⁵ Each state has enacted a nurse practice act that authorizes an individual to practice as a registered nurse if the applicant meets specific criteria. Laws or administrative rules in each state further outline documentation issues, such as handling of records, falsification of records, and confidentiality.⁶ Regardless of your work setting or nursing specialty, you must document care based upon the requirements of your state’s nurse practice act. For information on your state’s nurse practice act, contact the National Council of State Boards of Nursing.

In addition to observing laws governing documentation, you must adhere to professional standards, such as those established by the American Nurses Association.⁶ If you practice in a nursing specialty area, you must be familiar with and demonstrate compliance with documentation standards developed by your specialty organization. The commission publishes widely accepted professional and documentation standards. Although the Joint Commission doesn’t mandate a particular format for documentation, it does require each healthcare facility being accredited to adopt a format that conforms to Joint Commission standards.⁴ The ANA’s and the commission’s standards are much more stringent than state laws. ANA standards of nursing practice require that documentation be based on the nursing process and that it should be ongoing and accessible to all members of the healthcare team.⁴ Because ANA standards reflect a national practice consensus, they carry a great deal of weight in court.⁴

You also must follow documentation policies as established by your employing facility. Most healthcare facilities develop their internal documentation policies and procedures based on state law, professional nursing standards, and Joint Commission requirements. For example, your facility’s documentation policies should identify how often documentation should be done, which staff members are responsible for charting in each part of a patient’s record, and what charting techniques and procedures are acceptable.³ However, if your facility’s standards are less strict than those of your nurse practice act, you must adhere to the higher standard of your state’s nurse practice act.⁶

Effective documentation

Certain legal basics form a foundation for effective documentation. The saying “If it wasn’t documented, it wasn’t done” is as valuable today as it was when you learned it in nursing school.⁷ In addition to organizing your documentation based on the five steps of the nursing process — assessment, planning, nursing diagnosis, interventions, and evaluation — your charting should leave no question in a future reader’s mind that you continuously assessed your patient’s condition and carefully monitored his or her progress.

To help ensure legal credibility, make sure your charting is timely, accurate, truthful, and appropriate. Timely documentation means documenting care as soon as possible after it’s given. Although charting intervals will vary depending on the healthcare setting, regular charting entries demonstrate that you are checking your patient’s condition frequently.⁷ Don’t wait until the end of your shift to document, when you may not recall important details or eliminate potentially important information because you’re pressed for time.

Accurate documentation means that you document the facts about patient care. Chart only what you see, hear, smell, or feel. Document care only that you have personally given. Depending on your facility’s policy, document only care given by an unlicensed assistive staff member that you have directly observed or evaluated. Write specific, accurate descriptions. For example, charting “Bright red blood 18 cm in diameter on bed linens” is much more specific than charting “Bed soaked with blood.”⁷ Don’t use meaningless expressions such as “patient had a good night” or “appears” or “seems.”

Truthful documentation means avoiding assumptions and documenting only what you have actually observed. Appropriate documentation refers to committing to writing in a patient’s chart only statements you’d be comfortable showing in public.⁴ Make sure that you follow your facility’s documentation policies about issues such as late entries, legible charting, record confidentiality, blank lines, approved abbreviations, cosigning and patient refusal of treatment. Be sure to document any safety precautions you implement, such as putting up side rails. Keep comments about other staff members, allegations of inadequate care, or references to staffing problems out of the patient’s medical record.

Once litigation has begun, you shouldn’t add information to a patient’s medical record. The patient’s attorney can use handwriting experts to determine the time at which various entries were made. If you suspect that another healthcare professional has made illegal changes to a patient’s chart, notify your nursing supervisor. Do not change your notes if requested to do so by a colleague.³

Evidence of tampering with a patient’s chart not only is illegal, but it can cause the entire medical record to be inadmissible as evidence in court.³ The sidebar “Examples of illegal tampering with medical records” shows examples of illegal tampering or alterations to the medical record.

You also may be subject to charges of falsification of records and fraud if you document care that hasn’t been provided. Charting medication administration, dressing changes, or other treatments in advance all constitute falsification of records.⁶ The only component of the nursing process that can be documented before it is done is the plan of care. All other observations and activities must be charted only after you access or evaluate the patient or implement an intervention.⁶ When you write your initials on a medication record, your initials indicate that the medication has been given, not just removed from the drawer. If you place your initials on the record before giving the patient the medication, you are exposing yourself to legal risk.

If your facility uses a charting by exception (CBE) format, you’ll need to take extra precautions.^5,8 In a CBE system, only exceptions to expected observations are charted. Since it may be several years before a lawsuit occurs, CBE may make it difficult to demonstrate that you provided appropriate care, especially if a patient develops complications. Because minimizing documentation is risky, you’ll need to use well-designed flow sheets in a CBE system. If the CBE documentation doesn’t give a clear, accurate description of the patient’s condition, write it out in a narrative note. If you’re asked to testify several years later, you’ll be able to reconstruct an accurate picture of your patient’s condition.^1,8 Although the CBE system saves valuable time, legal experts advise institutions to develop their system carefully before implementation and to use quality controls to ensure that the system is working successfully.⁵

Certain types of charting actually increase your legal risk, such as failing to clearly describe situations that are out of the ordinary.^7,9 Another documentation practice that increases risk is expressing a negative view or animosity toward a patient. Describing a patient’s behavior as uncooperative, difficult, or manipulative or referring to the patient in a sarcastic manner alerts the patient’s lawyers that a nurse did not respect or value the patient.⁹ Although using a negative label when referring to a patient may reflect a nurse’s frustration, think of the impact of a negative term written in a chart projected on a screen in a courtroom.⁴ It’s important to describe patient behaviors in a factual and impartial manner.

Critical incidents

Critical incidents often are the basis for legal actions against nurses and hospitals. In many instances, the precipitating event that results in a lawsuit is poor communication and documentation.⁹ Documenting care as you provide it is especially important when you’re charting in an emergency. If possible, ask another nurse to record events as they occur during the emergency. If you don’t have a recorder, keep a running log of notes rather than trying to rely on your memory to reconstruct events after the emergency. (See “Documenting in emergencies.”)

You place yourself at great legal risk when you don’t assess or monitor patients regularly or when you don’t report a significant change in a patient’s condition. Common occurrences in which nurses have been held liable for failure to observe and report include situations in which a patient’s condition undergoes a rapid change, such as after surgery or during labor, after the patient has suffered an injury while in the facility, and when the patient has known self-destructive tendencies.¹⁰ Accusations of failure to adequately observe and monitor can be substantially countered by accurate, detailed documentation.¹⁰

Numerous legal cases involve a nurse’s failure to notify the physician about changes in a patient’s condition. These cases often are extremely serious, resulting in death or permanent disability.⁵ As a nurse, you have a duty to intervene on your patient’s behalf. Frequently, your intervention consists of contacting the physician about a change in the patient’s condition and carrying out whatever therapy the physician prescribes. However, your legal obligation as a patient advocate goes beyond carrying out prescribed treatment. If, in your professional judgment, you consider physician orders to place a patient in jeopardy, you must intervene on behalf of the patient and clarify the treatment plan with the physician.¹⁰ Some recent malpractice cases have hinged on whether the nurse was persistent enough in an attempt to notify the physician or to convince him or her of the seriousness of the situation. Nurses who fail to continue to question inappropriate orders by contacting a nursing supervisor or going up the chain of command can be held liable for failure to intervene because the intervention was below what is expected of them as patient advocates.¹⁰

If a change in a patient’s status warrants notifying the physician and a potential change in the treatment plan, you must be able to communicate essential information in a clear and logical manner that expedites understanding and intervention.⁹ Communication is more difficult by telephone than in person because nonverbal cues that enhance communication are eliminated. Therefore, when communicating via telephone, you must communicate information in a logical and organized way that creates a “word picture” to the physician.⁹ On weekends or on second or third shifts, your communication may be with an on-call physician instead of the patient’s primary physician. As this individual may not be familiar with the patient, it is essential that you summarize the patient’s background clearly before describing the problem.⁹ The sidebar “Organizing your reporting data” outlines a way of organizing data before physician contact.

Don’t apologize for calling the physician and don’t make him or her guess what you really mean. Some nurse experts report that there is evidence that nurses continue to use indirect communication and defer to physicians in order to avoid conflict.¹¹ It’s important to be clear about why you’ve called, rather than giving the physician a list of findings for him or her to interpret.⁹

Document each time you phone a physician, even if you don’t get through.⁷ When you do talk to the physician, chart the details of your message and the physician’s response.⁷ Be sure to document the name of the physician you spoke to; don’t refer to the person you called as “the MD” or “the doctor.”⁷ If you believe the physician is not responding appropriately, you’ll need additional documentation as a legal safeguard.⁹ Note specifically the details you reported, the time you called, the time new orders or no orders were received, and additional actions you take.³ If you don’t note the time you called, allegations could be made later that you failed to obtain timely medical treatment for the patient. Always note in the chart the specific change in the patient’s condition or diagnostic test result that prompted your call to the physician. If you’re reporting a crucial lab result, such as a high glucose level, but don’t receive an order for intervention, be sure to verify with the doctor that he or she doesn’t want to give an order. Your charting should note: “Dr. Green notified of blood glucose of 220 mg. No orders received.”

Reducing your legal risk is important in today’s healthcare climate, in which patients are sicker and more likely to have poor outcomes. Documentation that reflects the nursing process, including competent assessment, frequent observation, timely and accurate reporting, and the use of the chain of command if necessary, often will protect the nurse from accusations of negligence, even when there is a poor outcome.⁹ Your documentation should tell a story.¹² Your patient’s medical record and what you’ve documented in it is the single most important tool available to a nurse facing a charge of negligence.³ Legally credible documentation provides an accurate written record of the care your patient received and evidence that you met an acceptable standard of care. It tells anyone who reads it that you did all you were expected to do.⁴

By being familiar with your state’s nurse practice act, following professional standards for documentation, and adhering to your facility’s policies and procedures, you can provide your patient with quality nursing care while protecting yourself and your employer from legal action.