Read Part Two and Part Three.
“They’re alleging professional negligence on the basis that you knocked out her teeth,” the attorney on the other end of the phone told me. Fresh in my first semester of law school, and ironically, learning about negligence in torts class, I’d stepped out into the ambulance bay from my shift as an ER nurse to talk to the lawyer on the other end of the phone. It had been two years since the incident.
I swore I documented that the patient was already missing multiple teeth when I went to intubate them. Was I about to be sued? I asked, “Can I see a copy of my PCR?” and was told “We can go over it at your deposition.” To make matters worse, I was no longer an employee of the agency where this call occurred – would I still be covered by them?
More from the Author
Water, Drownings and Paramedics
Twice in 40 Days: An EMS System’s Response to Two of the Largest Wildfires in CA State History
The world of medical malpractice and negligence in pre-hospital care can be quite daunting and filled with landmines. Yet, by keeping a few simple things in mind, we can provide quality and aggressive patient care while worrying less about “legal stuff” and better understand what your risks are and aren’t.
As to the above incident, the case was dismissed without ever going to trial and the PCR was effective in securing the dismissal of the medical malpractice cause of action. I had in fact documented that the airway was a bloody teeth-filled mess from the patients impact on the pavement before I’d carefully intubated the patient and that the mechanism of injury was consistent with causing such injuries. As to whether I would have been covered – Yes. This occurred within the scope and course of my employment and falls under the doctrine of respondeat superior.1
Documentation: Honest and Practical
In a profession filed with dogmatic actions, how EMS providers document is no exception. Whether it’s “someone in billing,” or “that one manager,” or, my personal favorite saying <insert sarcasm> “it’s a legal thing” (anything and everything is potentially a “legal thing”), why providers are directed to or trained to document in a certain way is often more about upholding a dogma than it is based in what is necessary to ensure continuity of care, legally bill for services, and establish that treatment was provided in accordance the appropriate standard of care.
While there is no one size fits all approach to documentation, there is one bright line rule – be honest. Full stop. Be Honest. Falsification of patient documentation can hit all three of the proverbial liability buckets – civil, criminal, and administrative described in an upcoming article, Part III. Lying about what you did or intentionally, or carelessly omitting information on a PCR will, at the least, damage your credibility. At the worst, it can carry criminal consequences.2
The length, detail, and amount of specific documentation may vary based on the patient complaint. The amount of documentation for an EMT placing a bandage on a scarped knee at music festival will be vastly different than for a flight nurse or paramedic who intubates a major trauma patient with Rapid Sequence Induction. Documentation, like all things in medicine, should be proportional to the situation.
From a billing – and compliance –standpoint, the chart should accurately document why the patient needed an ambulance (i.e. diagnosis or chief complaint), why it needed to be your ambulance (i.e. why the patient needed the level of service BLS vs. ALS vs. SCT that your ambulance provides), and why now (i.e. why does the patient have to go to where they are going at this time?). A failure to accurately document the proverbial three “whys” can lead to a chart not meeting billing requirements which, on top of posing fiscal challenges for the agency (public or private), if the pattern becomes recurring can run afoul of a host of other laws and issues.3
Good documentation must paint a clear picture based on the incident. How much, or how little, you put in your narrative is largely a reflection of the fields in your electronic or paper patient care report “PCR.” Information does not, and should not, be repeated multiple time; once is enough. If it’s stated or shown in other parts of the PCR, it need not also be present in the narrative.
A good narrative serves to fill in the pieces and explain what is not adequately captured by other areas in the chart. Most commonly, this will include a description of the history of the present illness or injury, patient statements, and should usually include an explanation of your clinical decision making. A good narrative need not be verbose, and it should not be scant. Rather, it should have enough detail to adequately describe and explain what the rest of the PCR cannot.
Interim PCRs and Notes
Keep in mind that, if you use an “interim” PCR or other forms of “notes” which you create in advance of your finalized PCR, such a document is a part of the patient’s medical record. What’s more, information placed on an “interim” PCR is likely to be considered as more accurate since it was usually created closer to the actual incident versus a PCR completed after the fact. While there may be a role to use such documents to ensure continuity of care, extreme caution should be undertaken to ensure across the board accuracy of the information conveyed in both the “interim” PCR and the final PCR. If there are discrepancies, these should be explained. Above all else – do not lie.
Although discrepancies in a PCR – which can be more likely in situations where you find yourself documenting the same thing multiple times – are not always fatal to the PCR, during a deposition or at trial, such inconsistencies will likely be used to attack the credibility of your testimony and create doubt about what may have actually occurred.4 Inconsistences can also impact billing. One can help avoid inconsistencies by accurately documenting things in one place and in one document.
I’ve Been Sued!
You can do everything perfectly and still get sued – it happens. If you find yourself in this situation, you should consult with an attorney in your state who specializes in healthcare provider professional negligence. As a general rule, you should not discuss the matter with anyone outside of legal counsel. You don’t want a friend or colleague to inadvertently become a witness. You should preserve all potential documents related to the incident and should not do anything that may be seen as tampering with potential evidence.
In my current role as in-house counsel, I have to remind employees that I’m the attorney for the company, and not their attorney. Under the legal theory of “respondeat superior” an employer is liable for the actions and omissions of their employees or their agent” in the scope and course of employment.1. Something is within the scope and course of employment if it’s reasonable foreseeable.
In other words, just because something isn’t written into protocol or policy, or is in fact a violation of protocol or policy, if the employer could have reasonably foreseen the act or omission, it’s likely that the employer is responsible. However, an employee who engages in conduct which is egregiously outside of the bounds of their employment, or an employee who engages in criminal conduct, will not be protected by their employer.
Above all else, be reasonable, be kind.
Nothing in this article is legal advice and there is no attorney-client relationship that is being created. You should consult with a licensed attorney in your state of practice on any principles discussed herein and must not make reliance on any of this content without consulting with a licensed attorney in your state. Any situations stated should be presumed to not part of any singular incident and have been adapted for this presentation. In most cases, California law is cited for reference. While many general legal theories are the same state to state, laws and their application vary state to state.
This commentary reflects the opinion of the author and does not necessarily reflect the opinions of JEMS.
References
1. Cal. Civ. Code §2338.
2. Cal. Penal Code § 471.5.
3. Reardon, S. CMS Restricts Ambulance Services for Improper Medicare Billing. Revcycle Intelligence. Accessed 2024 Jan 8. Available from: https://revcycleintelligence.com/news/cms-restricts-ambulance-services-for-improper-medicare-billing
4. Cal. Evidence Code §780(h).
