Documentation and the Law

1. Documentation and the Law South Australian Wound Management Association 9th October 2004

3. Has documentation got a negative image? Generally � Yes Why?

4. Medical Records Can be Used: Civil court cases � negligence Tribunals � unprofessional / incompetent conduct Criminal court cases � abuse, assault, murder, criminal injury

5. Legal use: Can provide defence against allegations of negligence, improper treatment or omissions of treatment Fact finding during discovery phase of litigation

6. Medical Record: Principle tool used by all members of the health care team to: -plan -coordinate -document Patient care

7. They are a tool of communication

8. Documentation Provides legal proof of nature and quality of care patient receives Weight it carries cannot be over emphasised Legal duty to maintain medical record in accordance with clinical practice standards and state and federal laws

9. General Rule Medical record presumed accurate record in absence of evidence of fraud, alteration, destruction, tampering Evidence of the above could rule the case inadmissible as evidence Loss of medical record rebuttable presumption of negligence which can be rebutted by contrary evidence

10. The Standard of Care is: That which can be expected of the reasonable person with the same level of skill and expertise and in the same or similar circumstances They represent the minimum level of care accepted

11. Standards Create professional guidelines to ensure acceptable quality of care is given can be used as criteria to determine whether appropriate care has been given change alongside changes in practice in response to advancements in knowledge and technology

12. Factors that establish duty and standards Commonwealth and State Regulations Statutes Custom Accrediting bodies Scope of practice by professional organisations Organisations policy and procedures DHS Medical Record Documentation and Data Capture Standards (2000)

13. Documentation Your opportunity to show case your standard of care ensure that it is adequate and accurate professional take care to avoid inconsistencies, spelling errors, accusations

14. Documentation��.. Memories fade quicker than ink documentation can support or refute the standard of care given conflicting reports? Judge has to reconcile evidence with the facts

15. Good documentation alone not enough Poor communication Good documentation crucial but not enough Act on significant findings or exemplary charting is worthless Make note that consideration has been made of others reports

16. Late Recording Made in good faith � gives peace of mind BUT can if P provides evidence that the documentation was done at a different time, ink, paper than original document, destroy a totally defensible case By time you receive notice patient is suing � P lawyer would already have the notes, patient may have obtained copies � so changes would be noticeable

17. Legal comment on notes from the Coronor: Inquest into the death of William Hester 1999 � lack of documentation, lack of rationale for decisions, `nursing notes so impresice as to be almost useless�. Inquest into the death of Sandra Sanderson � case notes grossly inadequate, lack of entries regarding communication to staff about her condition, lack of entries about observation, no objective evidence in case notes, use of vague platitudes unhelpful

18. Coroner�s Court www.court.sa.gov.au Inquest into the death of Fallon Wanganeen 1999 � lack of entries in the record, inconsistency in documentation led to an inappropriate amount of supervision: Recommend that staff advised of the need to document relevant events Inquest into the death of Joyce Taylor 2002- Notes remarkably brief, Little point taking observations if they are not going to be recorded, not prepared to find that any detailed examination was done at all, not prepared to accept any history taken either

19. No shot in the dark - picture taking skills an essential tool in trauma management Help establish a pattern in the patients record takes less time to detail injuries than in writing communicates quickly and accurately provides a visual record for allied health workers and law enforcement agencies

20. Supplemental documentation Pictures won�t replace good charting Photographs are a form of supplemental documentation Can also help protect the organisation and staff from allegations that the patient did not receive proper care

21. Words vs Pictures Who remembers later: -the extent of the wound -existence of smaller / incidental signs of trauma Photo documentation continues to exist long after the wounds have healed and can have a powerful impact in a legal forum Photographs can preserve detail that can later prove a fact beyond reasonable doubt

22. Documentation of wounds caused by violence All the usual rules + some specific ones with a forensic focus

23. Two types of mechanical injury Many health carers will be involved in care of those who have been assaulted and in the legal interpretation of those injuries important to take care and be precise in documentation Type, size, position, shape, depth and structures involved

24. Particular forensic importance Injuries with a pattern (eg a weapon) Injuries contaminated with trace evidence (when two objects touch there is a transfer of material (trace evidence) from one to the other)

25. Blunt force injuries: Bruises, abrasions and lacerations Bruises � sites of bleeding into the tissue caused by a blunt force and where the surface is not broken Bruises most likely to have a pattern that is of some use forensically eg linear pattern of billiard cue, walking stick etc Distribution of bruises also helpful in determining the type of assault, upper arms - restraint, finger pad type to neck � strangulation Difficult to determine age of bruising Can be ectopic location eg periorbital bruising from impact to back of head. (Stella, J & Cooke, C. 2002)

26. Incised Wounds Sharp edged instrument drawn over tissue surface Two classical types - hesitation type incisions : explorative cuts before decisive incision eg front of wrists - defence type incisions eg fingers, arms, forearms (Stella, J & Cooke, C. 2002)

27. Penetrating Wounds Incisions are longer on surface and deeper internally Patterns and trace evidence External and internal characteristics may be useful in identifying knife blade eg 1) length of wound could be approximate with 2) width of blade ends of wound could indicate double or single edge cutting sides of the blade 3) depth of wound may indicate length of blade May also have hilt abrasion ( base of knife � which would indicate full depth of blade inserted in body) (Stella, J & Cooke, C. 2002)

28. What is adequate? Relevant? Can be difficult to determine May be more obvious with hindsight Will vary according to the circumstances Requires professional judgement

29. What not to write! R L R small middle finger buggered A well known, unshaven, unkempt, foul smelling, slightly cyanotic 62 year old alcoholic gentleman was carried into our emergency room by three million lice, all screaming, `Please save our host!� (unknown MO comment made in civil jury trial USA 1977)

30. Our Duty of Care Legal and ethical obligation to act according to the demands set down by our profession and employer Ethically obligation to `do no harm� Legally obligation to avoid causing harm and to act reasonably High Court has said this duty is comprehensive Duty can be owed beyond the visible

31. Improved efficiency

32. Has documentation got a negative image? Generally � Yes Why?