* ECPN * January/February 2001

Liability
An Expert's Perspective of the Medical Legal Chart Review

Deborah Warner, MS, ARNP, LHRM, CWOCN, CCRC, CLC

Warner Options, Inc.

Medical-legal experts consult with attorneys and claims adjusters in the review of medical records to determine if the healthcare provider(s) followed standard of care practices. Furthermore, their role is to determine if a deviation of standard of care caused harm to the plaintiff. Since most attorneys are not licensed healthcare providers, they depend upon medical consultants who have general medical knowledge and those who have advanced knowledge and expertise in a specified practice area. For instance, advanced practice nurses who are certified in wound management may be retained to evaluate a medical record and facilitate an attorney in either developing or defending a malpractice case related to pressure ulcers; whereas, a malnutrition claim may be reserved for licensed registered dietitian review. Physicians, nurses, dietitians, and therapists in good-standing practice who possess dependable critical thinking, reasoning, and communication skills are the individuals called upon to review medical records. Medical experts may consult with either or both plaintiff and defense attorneys. The purpose of this article is to explore standard of care, causation and documentation consistency issues that a consultant medical-legal expert will contemplate in reviewing a medical record for malpractice.

Although each medical expert has a unique style in reviewing the medical record and determining the merit of the claim, specific criteria are customarily included in the overall review. First, from the defense perspective, consideration is given to the complaint or notice of intent and verified expert medical opinion to determine the parameters of the case. What are the alleged wrongdoings of the healthcare providers and what are the injuries? The claim may be very vague and state that the healthcare providers breached their duty and caused harm to the plaintiff or the claim may stipulate deviations from standard of care and identify specific injuries.

In wound management cases, the deviations of care commonly listed in the complaint include 1) failure to develop or update a plan of care; 2) failure to follow the plan of care; 3) failure to provide pressure relief; 4) failure to utilize adequate support surfaces; 5) failure to turn and reposition; 6) failure to follow physician wound care orders; and 7) failure to notify the physician of a significant change. Alleged wound injuries resulting from the related deviation of standard of care typically include 1) development of a preventable pressure ulcer; 2) wound deterioration; 3) wound infection; 4) wound necrosis requiring debridement; and 5) pain and suffering. Pressure ulcers have been identified as the proximate cause or contributing factor in the development of gangrene and sepsis, necessity of amputation, and even death. Malnutrition, dehydration, exacerbation of underlying medical condition, infection, poor hygiene, and dignity issues are frequently associated claims as well.

Pursuant to the medical record review, the consultant expert determines if a deviation in the standard of care has occurred. Standard of care considerations include legal requirements, practice standards, accreditation standards, guidelines, and expert opinion. To determine if standard of care was adequate, the expert may also consider what a reasonable healthcare professional in good standing with a similar education and background would do under similar circumstances.

The medical expert further analyzes information from the medical record to determine causation of the alleged harm. For instance, was the cause of malnourishment related to staff's failure to provide adequate and prescribed nutrition via oral, enteral, or parenteral means, or was it related to the clinical condition of the patient or a patient's refusal to take nourishment? If documentation is adequate, the key is in the medical record. Herein is the potential problem in defending a claim: the record may be lacking sufficient documentation to reject the allegation. Without adequate documentation of weight, intake, nutritional intervention and patient's response, nutritional diagnosis, and lack of pertinent laboratory nutritional parameters, the expert may not be able to determine the causation of malnutrition. However, medical records from preceding and subsequent healthcare facilities and medical settings may offer some insight. To this end, additional records are often reviewed to complete a thorough evaluation and, if possible, to determine the cause of an individual's malnourishment.

Internal and external consistency are further considerations in a medical chart review. Do assessments support or contradict each other? In considering a wound evaluation, an expert may review the initial nurse's wound assessment notes and compare them with notes written by another discipline, supplemental documentation on a flow sheet, or a wound photograph documented on the same day. The wound assessments should be compatible; it is unlikely that they will be totally identical given the subjectivity of wound assessments. However, one would not expect to document a wound as a stage II and to observe obvious nonviable tissue in a wound photograph. In addition, one would not expect the transferring facility to document final wound dimensions as two by three centimeters and the receiving facility to document initial wound dimensions as six by ten centimeters. These examples demonstrate inconsistent documentation that the expert may not be able to rationalize. Additionally, incongruent wound documentation may suggest the staff is incompetent or that the medical record has been altered. So, one can clearly appreciate the benefit of complementary and concise documentation.

Depending upon the integrity of the medical record and the perspective of the medical legal consultant, the medical record may support or dispute a malpractice claim. An intact, complete medical record that reflects the patient's condition, care needs, and unique medical healthcare goals and describes the delivery of care that the patient desires and requires is paramount in defending a malpractice claim. Therefore, healthcare providers should pay particular attention to documentation that reflects delivery of care based upon defined standards. If an undesired outcome occurs, analyze and document the medical and clinical issues responsible for the occurrence. Lastly, documentation standards should facilitate a consistent, easy-to-read record. Incorporating these few measures may improve patient outcomes and thus limit potential litigation. A viable medical record can also refute an unsubstantiated malpractice lawsuit. The medical record is a reflection of the delivery of care, so healthcare providers need to "put it in writing." ***