“If you didn’t chart it, you didn’t do it” Part 2: The Nursing Home Defense Perspective

Nursing homes are affected by many challenges, many of which directly affect the quality of care and allegations of nursing home negligence. Nursing home defense may center around the documentation.

The challenges were highlighted by speakers at Preventing and Defending Long Term Care Litigation at The Conrad in Miami. Pat Iyer moderated a panel of defense and plaintiff attorneys and another legal nurse consultant.

A variety of state and federal regulations affect documentation in the medical record. For example, the Federal OBRA regulation that addresses this is 42 CFR 483.75 (1), which provides that the facility must “maintain clinical records that are complete, accurately documented, readily accessible and systematically organized.”

Potential nursing home defenses to allegations of poor documentation

1. When the plaintiff is a resident who was included in a federal or state survey, the failure of the surveyors to cite documentation as a deficiency may be evidence that the record was sufficient for the residents’ rights purposes.

2. There are many documents outside of the medical record: 24 hour reports, incident reports, weight committee minutes, third party records, fall committee minutes, financial file, arbitration agreement, surveys, and resident council minutes, infection control minutes wound/skin reports, EMT run sheets, census reports, antipsychotic drug reduction committee minutes, punch detail reports, controlled substance sign out sheet, personnel files, grievance reports, and quality assurance documents.

3. Care not documented in one part of the chart may be reflected in another part of the chart or in a document not part of the chart.

4. The resident’s outcomes may be consistent with care being done, even if it is not documented correctly. This is most evident in the clinical aspects of weight loss, hydration and nutritional status, skin breakdown, infections, and hyperglycemic or hypoglycemic episodes.

5. The resident’s outcomes may be consistent with those reported by other providers who cared for the resident during the relevant time.

6. The nursing charting may be equal to or better than that of other providers whose care is not being challenged.

7. Going through the multiple forms that caregivers are required to complete each shift shows that it is valid to assert a nursing home defense that it is unrealistic to expect a perfect chart.

8. Unless the charting is electronic, caregivers must either carry paperwork with them or rely on notes or their memories when they complete their paperwork at the end of their shifts.

9. Defense attorneys should ask plaintiff’s expert at deposition how to balance care with her documentation responsibilities in real time. As the expert explains the correct process, he or she may have to concede it is far from foolproof.

10. Defense attorneys should ask the plaintiff’s expert at deposition to explain how electronic documentation can be manipulated so it isn’t necessarily more reliable than paper documentation.

11. Poor documentation is not always evidence of poor staffing levels. Given additional time, many caregivers would choose to spend it checking residents instead of checking boxes. Read part 3 at this link. Is it true if you didn’t chart it you didn’t do it?

Pat Iyer is president of The Pat Iyer Group and the editor of Nursing Home Litigation, Investigation and Case Preparation. She edited Nursing Documentation, Fourth Edition.

This material is based on the slides of John Wade, Esq., Brunini, Grantham, Grower and Hewes and Bradley Kelly, Esq., of Quintairos, Prieto, Wood and Boyer. They focused on nursing home defense.