Litigation Threats in the Emergency Department. ED Legal Letter

Simply hearing the words, “I am going to sue you ... can send shock waves up your spine,” says Michelle Myers Glower, RN, MSN, LNC a health care consultant based in Grand Rapids, MI.
“Precise nursing documentation can either dis- suade a plaintiff or provide the leverage that is required to initiate one,” says Glower. “Nursingdocumentation is often the starting point in many malpractice cases,” she says.
Jurors and attorneys view what is written in the patient’s record as the best evidence of what really occurred, explains Glower. “It is extremely impor- tant that nursing documentation is timely, accu- rate, and complete,” she says. Glower gives these recommendations to reduce risks, in the event a patient threatens to file a lawsuit:
Make certain a hospital occurrence form has been filled out.
“This form serves as a resource for you later, to refer back to when being deposed,” says Glower. “It is not part of the medical record.”
Document worries or concerns by the patient or family.
“Then, document the nurse’s actions to calm their fears,” says Glower. “Medical mishaps should be documented concisely.” The incidents should not be overstated or misrepresented, says Glower, but also should not be concealed or understated.
Glower says that legal threats and complaints about the quality of care may be briefly docu- mented in the patient’s record in a non-judgmen- tal, neutral manner. “Do not use terms such as ‘vicious,’ ‘nasty,’ or ‘malicious,’ in the medical record,” she says. “Never record personal opin- ions, judgments, or conclusions about what hap- pened.”
A detailed report of the threat or complaint should be documented, precisely as stated in the incident report, says Glower. “Statements that may have legal significance, but which have no direct bearing on the care of the patient, should not be written in the record,” advises Glower.
Risk-prevention activity, such as completion of an incident report, risk management, should not be within the record, she adds. This may inadver- tently disclose information that should have been privileged, but because of disclosure, could be used by the defendant in a lawsuit, explains Glower.
“Do not make accusatory remarks against any provider in front of or near families, other provid- ers, or visitors,” says Glower. “Remember your elevator etiquette, as well.”
Inform hospital risk management.
Glower says to do this “the first chance you get. Their expertise is invaluable.” Rather than getting angry or defensive if a patient threatens to sue, Glower says to remember the acronym LEAD (L = Listen; E = Empathize; A = Act; D = Document.)
“Not all complaints are valid, and not all prob- lems can be fixed,” says Glower. “But giving
the upset patient an empathetic ear can make a world of a difference, even to the most distressed patient.”
Before you say anything , however, Glower advises working in tandem with your risk man- ager. “You need to monitor what rolls off your tongue carefully in these situations,” she says. “It should be well discussed, prior to meeting with the family.”
The nursing leader will need to review the chart and consult with the risk manager before contact- ing the patient, says Glower, so everyone is on the same page. “The sooner you get the appropriate people to have a conversation, either on the phone or in person, the better,” she says. “Have your ducks in a row and the chart in front of you.”



Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.