The Missing Protocol: Writing A Legally Defensible Report

BY DENISE H. GRAHAM, R.N., B.S.N., C.L.N.C.

Write all of your run sheets for the jury that may potentially read your written testimony.

You are the prehospital professional, the only healthcare provider attending patients in the prehospital arena. With your prehospital expertise, you provide a service that serves and protects the public, but who serves and protects you from the public? You must serve and protect yourself. In the present litigious climate, prehospital providers at all levels must learn to write a legally defensible report.

RUN SHEET IS PERMANENT PART OF RECORD

As you know, your run sheet, your documentation of prehospital care, is maintained as a permanent part of the patient’s medical record. Consider the following characterization of the permanent prehospital document you create each time you write a run sheet: The term “prehospital documentation” is synonymous with commanding terms such as “written proof,” “written support,” “written validation,” “written confirmation,” “written verification,” and “written authentication” regarding the facts of the prehospital patient encounter. Most importantly, the term “prehospital documentation” is synonymous with the term “prehospital evidence”: written evidence-your credible written testimony, factual information preserved in writing immediately after the call, the time when facts are readily recalled.

A fact not always considered is that the prehospital report or the run sheet is legally recognized as evidence-evidence that will either exonerate you or implicate you in a claim of wrongdoing. Providers must know that these prehospital care reports have been successfully used as evidence in litigation against the prehospital provider, as well as the associated crew members, chain of command, and administrating agency or jurisdiction. A legally defensible report is one that provides the proof, support, validation, confirmation, verification, authentication, or written evidence that a provider did provide care in accordance with the established standard of care.

THE LEGALLY DEFENSIBLE REPORT

The legally defensible report is one that is comprehensive and contemporaneous. It is organized and presents a quality written account of the prehospital encounter. The information in the legally defensible report is presented through a specific format and uses the accepted protocol as a template for documentation. A legally defensible report provides not only credible written testimony to protect the provider but also pertinent patient information for ensuing caregivers. The very presentation of a legally defensible report upholds provider professionalism and accountability.

Your documentation is a substitution for your memory; it is not written with the intent to simply “jog” your memory. With the passage of time, the memory is fallible, rendering important aspects of the call irretrievable. Your report is considered credible written testimony, specifically documented to preserve in writing the facts of the call. Your report will be considered factual information, preserving noteworthy details from the time of the call to the time of the official allegation of wrongdoing; through the statute of limitation and due process; and, at times, even through the age of majority-which may add up to be some 18 or more years after the call! Will your prehospital report serve you in the years to come?

Providers should view their documentation as a proactive, self-protective measure. Your report should be a written “word picture” that will convey a vivid image in the mind of the single most important person to read your run sheet, the juror! Your credible written testimony must transmit a word picture that allows each juror to graphically see what you saw in the prehospital setting, feel what you palpated, hear the sounds audible only to you, and smell the odors sensed by you. Your word picture must compel the jury to appreciate the prehospital scene and comprehend the rationale for the protocol followed as well as facets of care you provided.

A word picture allows the juror to visualize the patient’s response to your treatment; realize the final disposition of your patient; and, most importantly, determine that you followed the standard of care by recognizing that your treatment mirrors the accepted protocol.

As with most people, jurors will retain only 20 percent of what they see, merely 20 percent of what they hear, and just 50 percent of what they see and hear, yet a juror will remember 80 percent of what you involve them in.1

Involve the reader of your report; take him on the call by creating a run sheet that conveys a vivid image. Assure yourself that the jury will see and hear evidence that will exonerate you in a claim of wrongdoing. The jury will determine, in part through the information you provide in your run sheet, whether or not you will be exonerated or implicated in a claim of wrongdoing. Write all of your run sheets for the jury that may potentially read your written testimony, relying on it to determine your fate in the courtroom.

ORGANIZATION OF THE REPORT

Simplify and organize your prehospital report. Use organizational acronyms to simplify, categorize, and prompt. The SOAPIER (Subjective, Objective, Analysis of the assessment, Plan or Protocol, Implementation of the protocol, Evaluation of the treatment, Report finale) or the CHART (Chief complaint, History, Assessment, Rx: treatment/therapy per protocol, Transport and Transfer) format is recognized as a foundation for writing a legally defensible prehospital report, one that is well-organized, comprehensive, and all-inclusive and that will serve and protect you through time. Consistent use of a format will actually reduce your report writing time by 20 percent! (1)

In addition to the format foundation, use other organizational acronyms inherent in prehospital medicine such as SAMPLE (Symptoms, Allergies, Medications, Past medical history, Last oral intake, and Event leading to injury or illness), OPQRST (Onset, Provocations, Quality, Region or Radiation, Severity, Time), DCAPBTLS (Deformities, Contusions, Abrasions, Punctures, Burns, Tenderness, Lacerations, and Swelling), and TTFN (To whom care was transferred, Time, Fluid infusion, Necessary status update). (1) These queues ensure that the prehospital information will be focused, structured, complete, and all-inclusive.

Some run sheet designs, including computerized report-writing programs using “drop-down fields,” force documentation that is restrictive, limiting accurate prehospital information and inadvertently creating an obstacle to legally defensible documentation. Your providers may sidestep or even overcome this run sheet-imposed liability with legally defensible report-writing skills. Legally defensible documentation strategies provide the forum for detailing requisite prehospital information. These strategies ensure the inclusion of details surrounding the patient’s chief complaint, the provider’s complete assessment, the treatment provided for the patient, and outcome information regarding the patient’s response to care. Through provider ingenuity and appropriate adaptation of the jurisdictional report-writing standard, providers can realize the protection of a legally defensible report.

Your protocol is a vital element in the development of a legally defensible report. Just as novice and advance practice providers must rely on the protocol to render care, it is imperative to rely on the protocol also as the template for documentation of the prehospital encounter. Use it as a checklist so that your run sheet provides the evidence needed to confirm that your care was consistent with the standard of care. The prehospital provider’s written testimony is the primary means for the provider to prove that the standard of care was adhered to. If your documentation does not prove that you adhered to the standard of care, then your documentation may imply a deviation from the standard of care, which may be construed as negligence.

A legally defensible report concludes by definitively ending the provider’s vulnerability to liability. Conclude your report with the acronym TTFN, which reflects four specific details surrounding the transfer of patient care. This designates an accurate moment in time when the prehospital provider transfers responsibility of the patient, thereby concluding the provider’s vulnerability to liability.

Prehospital research points out that 50 percent to 90 percent of the litigation ensuing against prehospital providers hinges on a patient refusal situation. (1) This would infer that less than half of the claims against providers are related to care the patient received. Research also points out that a significant number of claims are settled before they reach the courtroom; too frequently, they are settled because of a lack of legally defensible prehospital documentation. This issue begs the question of whether or not prehospital litigation, cumulatively adding up to millions of dollars, is just as costly as poor prehospital documentation.

The term “refusal” is a deficient term that makes the provider vulnerable to liability. This can be minimized by using an all-inclusive, well-organized, legally defensible approach to document an informed patient’s refusal by using yet another acronym or prompt, A3E3P3 (Assess, Advise, Alleviate, Explicit, Exploit, Explain, Persuade, Protocol, Protect). By refocusing the provider’s attitude that a patient’s refusal of care or transport is not merely an arbitrary refusal of service but instead an informed, educated decline for care or transport, legally defensible documentation of the informed refusal will minimize provider liability.

Endnote


  1. Graham, D. The Missing Protocol-A Legally Defensible Report (Ashton: Clemens Publishing, 1999).

DENISE H. GRAHAM, R.N., B.S.N, C.L.N.C., is the author of The Missing Protocol-A Legally Defensible Report (Clemens Publishing, 1999) and the originator of the interactive educational program designed for prehospital providers.

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