(This article was originally published in
Healthcare Call Center Times in March 2021.)
LAKE OSWEGO, OR—Barbara Hansen, MS, RN, LNCC, CPHRM has been a legal nurse consultant for more than 25 years, the last dozen or so for the Medical Resource Network, a legal nurse consulting firm based in Lake Oswego, Oregon. Her specialty is representing the defense in lawsuits from patients and families.
One of the things Hansen, whose official title is Legal Nurse Consultant and Manager, has observed during her time in this profession is that telephone triage documentation has improved. However, she says, “nurse triage calls to a hospital system are typically not the focus of a claim. They are not where the allegations are focused.” Rather, the triage call fits in as part of the overall case story.
For example, one of her recent cases focused, in part, on a triage call from a parent to a nurse. The nurse's advice was for the child to be taken to the ER. The parent did not take that advice and called again later. The parent again was told to take their child to the ER, but did not, instead opting for an office visit on another day. The result “was a delay in making the correct diagnosis,” she says.
Having the phone calls documented properly was invaluable in this case, replacing what could have been a she said/she said problem if the calls had not been meticulously documented. Doing this documentation correctly is so important, she says, because it may be a year or two before a legal case is brought and relying on memories is suspect.
There are many cases where the documentation done as a part of the decision support protocols is enough. As long as the protocols are being followed, and there is nothing outside of the protocols, there should not be a need to write extra commentary, Hansen says. Where notes ought to be added is for those unusual phone interactions outside the protocols or where something stands out (e.g. the caller really kept yelling at me, etc.)
However, there may be some situations where these notes as part of the call documentation can’t take place in real time. In those cases, “the documentation should be done before the end of the person’s shift,” she says. “It should reference the time the documentation was made and the time it is referring to.”
Even so, having a delayed documentation can leave the nurse open to a challenge by the plaintiff’s attorney. For example, the attorney might say “how can you remember what was said in that call because you took 15 more calls after that one,” she says.
In a legal medical case, one of the standards that are applied is what a reasonable nurse would have done in the case. “This is something a jury can't decide,” she says. They do not have the medical expertise to weigh in on this. So, that’s when expert testimony comes into play. The defense hires their experts such as Hansen, and the other side hires their own experts. Then it is up to the jury as to which ones they believe more.
However, Hansen says, in her experience, only about 5 percent of these lawsuits go to trial. Rather, the rest are settled after the discovery process is completed and depositions taken. This can include the input of experts. Then, the issues are hashed out between the two sides. This includes looking at such things as proximate cause. Did whatever was done or not done cause the injury. For example, let’s say that there was negligence in the patient's temperature being communicated from the triage nurse to the doctor. Did this failure to communicate cause the injury or was the injury something like a broken leg, where the patient’s temperature was not at issue, she says. Additionally, has the patient suffered damages that would not have occurred if different practices had been followed and, if so, what should be the monetary compensation for that?