Kyle N. Sweet Sweet Law Firm 414 N.W. 4 th Street Suite 150 Oklahoma City, OK cell ©2011 Sweet Law Firm

Perinatal Safety A LEGAL PERSPECTIVE © Presentation by Kyle Sweet Sweet Law Firm October 4, 2011 ©2011 Sweet Law Firm

Remember Your Guidelines  Know Your Guidelines = Standard of Care  Guidelines = Gun to Your Head ©2011 Sweet Law Firm

Liability Implications  Approximately 2/3 of claims in perinatal cases involve one or more of the following issues: Failure to diagnose and treat fetal distress, Failure to diagnose and treat fetal distress, Ineffective management of shoulder dystocia, Ineffective management of shoulder dystocia, Problems with technical performance during operative delivery, and Problems with technical performance during operative delivery, and Teamwork and communication failures among providers and with patients. Teamwork and communication failures among providers and with patients. ©2011 Sweet Law Firm

Medical Negligence What is Negligence? What is Negligence? A theory of liability concerning allegations of medical malpractice. A theory of liability concerning allegations of medical malpractice. What is Liability? What is Liability? Bearing the legal responsibilities for negligent acts or omissions. Bearing the legal responsibilities for negligent acts or omissions. ©2011 Sweet Law Firm

Medical Negligence A person who alleges Negligent Malpractice must prove FOUR elements: A person who alleges Negligent Malpractice must prove FOUR elements: Duty: Must owe a duty to a patient. Duty: Must owe a duty to a patient. Breach: Must have evidence, usually by an expert opinion, that the health care provider violated that duty by failing to follow the applicable standards of care. Breach: Must have evidence, usually by an expert opinion, that the health care provider violated that duty by failing to follow the applicable standards of care. Causation: The breach of the applicable standard of care must cause an injury to the patient. Causation: The breach of the applicable standard of care must cause an injury to the patient. Damages: The amount of money it takes to keep a brain injured human being alive, fed, transported, medicated, educated, treated, rehabilitated, entertained, and monitored. Damages: The amount of money it takes to keep a brain injured human being alive, fed, transported, medicated, educated, treated, rehabilitated, entertained, and monitored. ©2011 Sweet Law Firm

Health Care Providers’ Practical Responsibilities Assessing the patient; Assessing the patient; Monitoring the patient; Monitoring the patient; Diagnosing the patient (distress in baby and appreciating the risk factors the patient has for developing distress); Diagnosing the patient (distress in baby and appreciating the risk factors the patient has for developing distress); Preventing an emergency or sentinel event; Preventing an emergency or sentinel event; Reacting to an emergency or sentinel event; Reacting to an emergency or sentinel event; Skills in the performance of surgical tasks; Skills in the performance of surgical tasks; Documentation. Documentation. ©2011 Sweet Law Firm

What Lawyers Look For Apply the retrospectoscope to an event to determine IF something could have prevented the outcome. Apply the retrospectoscope to an event to determine IF something could have prevented the outcome. If a different treatment course COULD have resulted in a different outcome, then you have a lawsuit on your hands. If a different treatment course COULD have resulted in a different outcome, then you have a lawsuit on your hands.  To evaluate a case the lawyer will have two things: 1. Your charting entries and 2. The Fetal Monitoring Strips. There are no depositions, peer reviews, incident reports, or expert evaluations. There are no depositions, peer reviews, incident reports, or expert evaluations. Expert evaluation prior to a lawsuit being filed is no longer necessary in Oklahoma. Expert evaluation prior to a lawsuit being filed is no longer necessary in Oklahoma. ©2011 Sweet Law Firm

Effective Documentation Certain legal basics form a foundation for effective documentation. Certain legal basics form a foundation for effective documentation. Adage: “If it wasn’t documented, it wasn’t done.” Adage: “If it wasn’t documented, it wasn’t done.” Organizing documentation on five steps of the nursing process: assessment, planning, nursing diagnosis, interventions and evaluation. Organizing documentation on five steps of the nursing process: assessment, planning, nursing diagnosis, interventions and evaluation. Charting should leave no question in a future reader’s mind that care givers continuously assessed patient’s condition and monitored progress. Charting should leave no question in a future reader’s mind that care givers continuously assessed patient’s condition and monitored progress. To help ensure legal credibility, make sure your charting is : To help ensure legal credibility, make sure your charting is :  Timely  Accurate  Truthful  Appropriate ©2011 Sweet Law Firm

Effective documentation continued Timely: Timely: Means documenting as soon as possible after it’s given; Means documenting as soon as possible after it’s given; Regular charting demonstrates checking condition; Regular charting demonstrates checking condition; Don’t wait until the end of your shift, Don’t wait until the end of your shift, May not recall details or be pressed for time. May not recall details or be pressed for time. Accurate: Accurate: Means document facts about care: only what you see, hear, smell or feel. Means document facts about care: only what you see, hear, smell or feel. Only document care you personally gave. Only document care you personally gave. Write specific, accurate descriptions. Write specific, accurate descriptions. Do report “Bright red blood 18 cm in diameter on bed linens” Do report “Bright red blood 18 cm in diameter on bed linens” Don’t just report “Bed soaked with blood.” Don’t just report “Bed soaked with blood.” Don’t use meaningless: “patient had a good night” or “appears” or “seems.” Don’t use meaningless: “patient had a good night” or “appears” or “seems.” Use: Use: “no change in condition” or, “patient assessed, vital signs w/in normal limits, no c/o pain.” “no change in condition” or, “patient assessed, vital signs w/in normal limits, no c/o pain.” ©2011 Sweet Law Firm

Effective documentation continued Truthful: Truthful: Means avoiding assumptions and documenting only what you have actually observed. Means avoiding assumptions and documenting only what you have actually observed. Appropriate: Appropriate: Means only statements you’d be comfortable showing in public. Means only statements you’d be comfortable showing in public. Follow Policy Regarding : Follow Policy Regarding : Late entries, Late entries, Legible charting, Legible charting, Record confidentiality, Record confidentiality, Blank lines, Blank lines, Approved abbreviations, Approved abbreviations, Co-signing, Co-signing, Patient refusal of treatment. Patient refusal of treatment. ©2011 Sweet Law Firm

Charting and Litigation Once litigation starts, don’t add information to record. Once litigation starts, don’t add information to record. Attorneys use handwriting experts and computer forensics experts to determine when time entries made. Attorneys use handwriting experts and computer forensics experts to determine when time entries made. Computer charting indicates a time stamp of when entry is actually made. Computer charting indicates a time stamp of when entry is actually made. If you suspect that another care giver made illegal changes, notify supervisor. If you suspect that another care giver made illegal changes, notify supervisor. Do not change your notes if requested to do so by a colleague without consultation with a lawyer. Do not change your notes if requested to do so by a colleague without consultation with a lawyer. Your communication with a lawyer is protected by privilege. Your communication with a lawyer is protected by privilege. Evidence of tampering is illegal and will cause the entire medical record to be inadmissible in court. Evidence of tampering is illegal and will cause the entire medical record to be inadmissible in court. SPOLIATION is the beginning of the end. SPOLIATION is the beginning of the end. You can’t defend a chart that has been altered or tampered with. You can’t defend a chart that has been altered or tampered with. You subject yourself or your organization to punitive damages and possibly more serious penalties by your licensing agency. You subject yourself or your organization to punitive damages and possibly more serious penalties by your licensing agency. ©2011 Sweet Law Firm

Charting and Litigation continued Subject to charges of falsification and fraud if documented care not provided. Subject to charges of falsification and fraud if documented care not provided. Be careful of what is ICD 9 coded or billed. Be careful of what is ICD 9 coded or billed. If you billed for something that is not done, it will come up. If you billed for something that is not done, it will come up. If you failed to document something, but it is reflected in the bill, that is useful but is a poor substitute for documenting in the chart. If you failed to document something, but it is reflected in the bill, that is useful but is a poor substitute for documenting in the chart. Do not assume that the nurse will bail you out with their charting. Do not assume that the nurse will bail you out with their charting. Do not assume that the physician will bail you out with their charting. Do not assume that the physician will bail you out with their charting. Does facility use charting by exception (CBE) format. Does facility use charting by exception (CBE) format. If so, follow flow sheets and forms closely. If so, follow flow sheets and forms closely. If you use CBE, make sure there is not an inconsistent policy on documentation. If you use CBE, make sure there is not an inconsistent policy on documentation. Be objective when charting non-compliant behavior by patient. Be objective when charting non-compliant behavior by patient. ©2011 Sweet Law Firm

Notifying the Physician The most important phone calls you will ever get or make. Lawyers and experts make a living criticizing these contacts. Take these calls seriously. Phone consults between nurses and attending physician can be the most important aspect of most OB lawsuits. If a change in status warrants notifying the physician, must be able to communicate essential information. Communication is more difficult by telephone than in person. When communicating by telephone, communicate in a logical and organized way that creates a “picture” to the physician. ©2011 Sweet Law Firm

Notifying the Physician continued With an on-call physician, summarize background before describing problem. Organize data before physician contact is as follows: Be clear about why you’ve called, rather than giving a list of findings for physician to interpret. Give the pertinent facts that are related to the issues: Change in condition, prolonged labor, failure to progress, problems with strip, complaints of patient. When talking to physician, chart the details of your message and the physician’s response, i.e., time, details, response, orders or not, etc. This protects both the nurse and the physician. ©2011 Sweet Law Firm

Incident Reports: Attracting sharks with blood in the water! Never reference in the patient’s chart that an incident report was filled out. Never reference in the patient’s chart that an incident report was filled out. Never place the incident report in the patient’s chart. Never place the incident report in the patient’s chart. Never write an order for someone else to fill out an incident report. Never write an order for someone else to fill out an incident report. Never use extra paper! If you need another piece of paper to report everything fully, you are divulging too much. Tear it up and start over. Never use extra paper! If you need another piece of paper to report everything fully, you are divulging too much. Tear it up and start over. Be Sgt. Joe Friday: Just the facts. Be Sgt. Joe Friday: Just the facts. Should ideally be completed by the person most closely involved with the incident. Should ideally be completed by the person most closely involved with the incident. ©2011 Sweet Law Firm

What gets us sued? Statements to patients and their family. Statements to patients and their family. Bedside manner. Or, lack thereof. Bedside manner. Or, lack thereof. Not returning phone calls. Not returning phone calls. Misdiagnosis. Misdiagnosis. Failure to manage expectations of both patient and family. Failure to manage expectations of both patient and family. Informed Consent (responsibility of physician, not the nurse). Informed Consent (responsibility of physician, not the nurse). Illegible handwriting: Illegible handwriting: May result in medication errors, misunderstanding of orders and it makes you look bad to a jury. May result in medication errors, misunderstanding of orders and it makes you look bad to a jury. Fighting in the chart. Fighting in the chart. ©2011 Sweet Law Firm

VBAC’s Consent, consent and consent! Consent, consent and consent! Consent should be detailed with the risks, complications and alternatives to treatments. Consent should be detailed with the risks, complications and alternatives to treatments. The consent should reference a conversation directly between physician and patient. The consent should reference a conversation directly between physician and patient. Consent is legal duty of physician, not anyone else. Consent is legal duty of physician, not anyone else. Complications: Complications: Uterine rupture risks, bladder lacerations, adhesions, hysterectomy, incontinence, etc. Uterine rupture risks, bladder lacerations, adhesions, hysterectomy, incontinence, etc. Discuss these with your patient. Discuss these with your patient. Put it in the chart, write patient a letter. Put it in the chart, write patient a letter. Chart previous VBAC’s. Chart previous VBAC’s. If possible, obtain the prior records. If possible, obtain the prior records. Hospital should make sure there is ample OR space and Anesthesia coverage. Hospital should make sure there is ample OR space and Anesthesia coverage. Pain over epidural should not be ignored. Pain over epidural should not be ignored. When contacted that patient is at hospital, don’t forget your laboring patient is a VBAC. When contacted that patient is at hospital, don’t forget your laboring patient is a VBAC. ©2011 Sweet Law Firm

Shoulder Dystocia: Abnormal Labor and Fetopelvic Disproportion Liability concerns prenatal care in the office and issues encountered in the labor and delivery room. Liability concerns prenatal care in the office and issues encountered in the labor and delivery room. Liability issues: Liability issues: 1. Abnormalities of the powers (uterine contractility and maternal expulsive effort). 2. Abnormalities of the passenger (fetus). 3. Abnormalities of the passage (the pelvis). Williams on Obstetrics21st Edition, page 426 “The greatest impediment to understanding normal labor is recognizing its start”. “The greatest impediment to understanding normal labor is recognizing its start”. Thus, it is a subjective determination that is subject to definitions provided after the fact by expert witnesses. Thus, it is a subjective determination that is subject to definitions provided after the fact by expert witnesses. Failure to diagnose fetopelvic disproportion or any of the other buzz words such as cephalopelvic disproportion. Failure to diagnose fetopelvic disproportion or any of the other buzz words such as cephalopelvic disproportion. Failure to timely respond and diagnose failures to progress. Failure to timely respond and diagnose failures to progress. You get sued if you don’t do a c-section fast enough. You get sued if you don’t do a c-section fast enough. You get sued if you do one too quickly. You get sued if you do one too quickly. ©2011 Sweet Law Firm

Fetal Heart Strips The Strips are interpreted beyond what they were ever intended to do. The Strips are interpreted beyond what they were ever intended to do. Take Fetal Heart Strips seriously. Take Fetal Heart Strips seriously. Fetal Heart Strips tell a big story to the jury. Fetal Heart Strips tell a big story to the jury. Do not overly rely upon Fetal Heart Strips as a source of charting. Do not overly rely upon Fetal Heart Strips as a source of charting. Still make notes on what your reaction is to the strip. Still make notes on what your reaction is to the strip. Let the jury know that you were reading it and what your thought process was. Let the jury know that you were reading it and what your thought process was. This is helpful to show that you were involved in the labor, not just showing up to play catch the baby and cash the check. This is helpful to show that you were involved in the labor, not just showing up to play catch the baby and cash the check. ©2011 Sweet Law Firm

If YOU are being sued Do not talk to ANYONE: Do not talk to ANYONE: This includes nurses, attending physicians, friends, family members of patients and This includes nurses, attending physicians, friends, family members of patients and NEVER talk to a lawyer for the patient or family. NEVER talk to a lawyer for the patient or family. Do not give a statement. Do not give a statement. You may be recorded. You may be recorded. In Oklahoma, you do not have to give your permission in order to be recorded. In Oklahoma, you do not have to give your permission in order to be recorded. DO call Risk Management. DO call Risk Management. DO notify your Insurance Carrier. DO notify your Insurance Carrier. ©2011 Sweet Law Firm

AMA and Perinatal Safety Bundles The AMA published an article (June 16, 2008 Amednews.com) describing a growing trend amongst hospitals to implement recommendations of the Joint Commission and the Institute for Healthcare Improvement to eliminate preventable birth trauma. The AMA published an article (June 16, 2008 Amednews.com) describing a growing trend amongst hospitals to implement recommendations of the Joint Commission and the Institute for Healthcare Improvement to eliminate preventable birth trauma. Target: OB/GYN’s and hospitals. Target: OB/GYN’s and hospitals. 3 in 1,000 deliveries result in serious perinatal injuries that can result in CP, birth asphyxia or permanent neurological disability. 3 in 1,000 deliveries result in serious perinatal injuries that can result in CP, birth asphyxia or permanent neurological disability. Initiative seeks to have “bundles”, or groups of related interventions shown to reduce harm when performed in concert, based on clinical practice guidelines from ACOG and AWHONN. (Association of Women’s Health, Obstetric and Neonatal Nurses). Initiative seeks to have “bundles”, or groups of related interventions shown to reduce harm when performed in concert, based on clinical practice guidelines from ACOG and AWHONN. (Association of Women’s Health, Obstetric and Neonatal Nurses). “Bundling” Defined: Implementing ACOG guidelines as steps that, when performed together as related interventions, attempt to eliminate negative outcomes in deliveries. “Bundling” Defined: Implementing ACOG guidelines as steps that, when performed together as related interventions, attempt to eliminate negative outcomes in deliveries. ©2011 Sweet Law Firm

AMA and Perinatal Safety Bundles continued Example of a Bundling: Example of a Bundling: When using Pitocin to induce labor, the doctor will: When using Pitocin to induce labor, the doctor will: Assess gestational age, ensuring that it exceeds 39 weeks; Assess gestational age, ensuring that it exceeds 39 weeks; Monitor fetal heart rate for reassurance according to specific definitions developed by the National Institute for Child Health and Human Development; Monitor fetal heart rate for reassurance according to specific definitions developed by the National Institute for Child Health and Human Development; Assess pelvis to determine dilation, effacement, station, fetal presentation, and cervical position and consistency; Assess pelvis to determine dilation, effacement, station, fetal presentation, and cervical position and consistency; Monitor and manage hyperstimulation and respond according to a predetermined consensus plan. Monitor and manage hyperstimulation and respond according to a predetermined consensus plan. Problem: Communication. Problem: Communication. According to a 2004 report by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), approximately 72 percent of perinatal sentinel events/incidents creating serious patient harm or the potential for serious harm are rooted in communication breakdowns. According to a 2004 report by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), approximately 72 percent of perinatal sentinel events/incidents creating serious patient harm or the potential for serious harm are rooted in communication breakdowns. Issue: Nurses are being directed by policy and procedure to shut off Pitocin in the event of certain circumstances without an order from a physician. Issue: Nurses are being directed by policy and procedure to shut off Pitocin in the event of certain circumstances without an order from a physician. Communication is the key. Communication is the key. Documenting the communication protects everyone. Documenting the communication protects everyone. Despite a policy and procedure directing a nurse to take an intervention, the physician must be contacted and informed. Despite a policy and procedure directing a nurse to take an intervention, the physician must be contacted and informed. DO NOT ASSUME that the physician knows about this policy. DO NOT ASSUME that the physician knows about this policy. ©2011 Sweet Law Firm

Q & A ©2011 Sweet Law Firm

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