Liability risks relating to documentation of obstetric care –

and how to avoid them!

Jennifer Cowen

27 June 2014

The obligation to document obstetric care

• Common law duty of care:

• Negligence: a duty of care, a breach of that duty, damage that flows from that breach. The most common basis for a claim or complaint.

• Professional Standards

• AMA Code of Conduct

• Midwifes’ Code of Conduct

• Legislation

• Hospital Policies or By-Laws

Common law duties

•  Rogers v Whitaker

•  The doctor’s duty is: ‘a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”;2 it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.3 It is of course necessary to give content to the duty in the given case.’

•  Breen v Williams

•  ‘The advice and treatment required to fulfil [the duty] depends on the history and condition of the patient, the facilities available and all the other circumstances of the case.’

Professional obligation – AMC Code of Conduct: Good Medical Practice (2014)

• 8.4 Medical records •  Maintaining clear and accurate medical records is essential

for the continuing good care of patients. Good medical practice involves:

•  8.4.1 Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners.

•  8.4.2 Ensuring that your medical records are held securely and are not subject to unauthorised access.

•  8.4.3 Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks.

Good medical practice (cont)

•  8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care.

•  8.4.5 Making records at the time of the events, or as soon as possible afterwards.

•  8.4.6 Recognising patients’ right to access information contained in their medical records and facilitating that access.

•  8.4.7 Promptly facilitating the transfer of health information when requested by the patient.

•  The Code provides that: ‘Serious or repeated failure to meet these standards may have consequences for your medical registration’.

Nursing and Midwifery Board: Midwifes’ Code of Conduct (2013)

•  Conduct statement 2: Midwives practise in accordance with the standards of the profession and broader health system

•  Point 2: Midwives practise in accordance with wider standards relating to safety and quality in midwifery care and accountability for a safe health system, such as those relating to health documentation and information management, incident reporting and participation in adverse events processes.

•  Other conduct statements also touch on issues relating to documentation:

•  C.S. 1: Midwives practise in a safe and competent manner.

•  C.S. 3: Midwives abide by laws relating to the profession.

•  C.S. 5: Midwives treat information as private and confidential.

•  A breach of the Code may constitute either professional misconduct or unprofessional conduct.

Legislation - National •  Legislative requirements vary from state to state – some states

have specific regulations detailing the manner in which clinical records must be kept in public practice, private practice and/or private facilities.

•  Health Practitioners Regulation National Law Act 2009 (all states)

•  Failure to maintain proper records might potentially constitute unsatisfactory professional conduct or professional misconduct under the National Law.

•  Privacy Act 1988 (Cth)

•  Sets out National Privacy Principles.

•  Imposes obligations relating to the collection, storage and disclosure of sensitive personal information, which includes health information.

Legislation - Victoria •  Health Services Act 1988 (Vic)

•  Under section 109 health services [private hospitals and day procedure centres] must keep records of prescribed particulars relating to patients and the care provided to them.

•  Regulations under section 109 prescribe comprehensive clinical records which must be kept.

•  Section 42 allows Secretary of DHS to give directions to public hospitals regarding what records are to be kept.

•  Health Records Act 2001 (Vic)

•  An objective is to require responsible handling of health information in the public and private sectors. The Act sets out 11 Health Privacy Principles (HPP) relating to the collection, storage and disclosure of health information.

•  HPP 4.2 requires retention of health information for at least 7 years.

Hospital policies and by-laws

• May require specific records to be created in certain circumstances, eg:

•  Consent form for surgical procedures;

•  CTG during induction of labour;

• Observation and Medication Charts

•  Clinical pathway.

•  Hospital policies and by-laws may be guided by requirements of applicable legislation, eg Health Services Act in Victoria imposes obligations on private hospitals to collect and maintain certain records.

When can poor documentation lead to liability risks?

1. Impact on provision of care

• Wherever there are:

• missing records of relevant matters;

• ambiguous or misleading records;

•  inaccurate or post-dated records; or

•  failures to act appropriately on documented observations, findings or investigations,

there will be potential risks of legal liability.

Tips for good record keeping • Do:

•  Check that you have the correct chart before writing.

•  Write legibly. Print your name.

•  Use professional, respectful language.

•  Record dates and times (in 24 hour time).

•  Document often enough and concisely to tell the whole story.

•  Complete all relevant fields in clinical pathways and observation charts meaningfully and accurately – don’t just ‘tick the boxes’.

•  Chart precautions and preventative measures.

•  Record information provided to the patient, such as brochures.

•  List risks and complications of which the patient was warned.

•  Record communications with others (midwives, doctors, etc) including the name, communication type, reason, outcome and any follow up required.

Tips for good record keeping continued …

• Don’t: •  Chart a symptom such as ‘c/o pain’ without also charting

what you did about it.

•  Arrange investigations without checking and acting upon the results.

•  Alter a patient’s record without making it very clear that is what you are doing.

•  Use shorthand or abbreviations that aren’t widely understood.

•  Make retrospective entries without noting that the entry is retrospective.

•  Write entries on behalf of another staff member.

Case example: absent record of finding •  29 year old, second pregnancy at 40.3 weeks in

established labour.

•  Fully dilated after three hours.

• Maternal exhaustion after pushing for one hour.

•  Sudden, terminal bradycardia.

•  Baby born in poor condition and subsequently died.

•  True knot found in the umbilical cord.

• Midwife did not record that finding in the progress notes.

• Matter was required to proceed to full Inquest.

•  Coroner made recommendations requiring thorough documentation of abnormalities with placenta or cord.

Case example: absent examination record

• HCCC v Baiyer (2014) •  Complaints made against doctor in relation to his conduct by

two patients.

•  One of the complaints related to an alleged external examination of the patient’s genitalia and an internal examination.

•  The doctor had made no record of the examination, but the HCCC found that the examination had occurred as the complainant alleged.

•  The doctor was found to have engaged in improper conduct under the Health Practitioner Regulations (NSW) in that he had failed to document the examination, as required.

Case example: absent CTG trace •  29 year old, first pregnancy, 39.5 weeks

0734 hours – 1cm dilated, oxytocin, CTG

Oxytocin rate increased every 30 minutes

1045 hours – bowel pressure and large bloody show

1100 hours – CTG: early decelerations consistent with cord compression

1118 hours – CTG on but not recording the trace

1135 hours – fully dilated, for active pushing

1155 hours – CTG tracing turned on. Fetal tachycardia. prolonged decelerations

1230 hours – deep decelerations noted and obstetrician notified

1249 hours – delivery of baby in a poor condition.

•  Expert critical of:

•  mother pushing for 20 minutes without a CTG;

•  delay in recognising and then notifying obstetrician of decelerations; and

•  failure to discontinue oxytocin at an earlier time given CTG findings.

Case example: absent fields in clinical pathway

•  Patient underwent an instrumental delivery, in the course of which an episiotomy was required. Episiotomy repair was carried out in the birth suite.

•  Clinical pathway required daily checks of the perineum – checks not recorded for the two days prior to discharge.

•  Several days after discharge, the domiciliary midwife visited and noted perineal discharge with offensive odour. Infection was diagnosed and treated, but a recto-vaginal fistula developed.

•  It was alleged that the infection had been present while the patient was in hospital, but had not been recognised and treated.

Case example: ambiguous CTG •  28 year old, first pregnancy, IOL at 37 weeks for

hypertension

0200 hours – rupture of membranes

0700 hours – fully dilated

0745 – head on view between contractions. Difficulty ascertaining whether the FHR or the maternal heart rate was being recorded on the CTG. Fetal head stretching the perineum.

0755 – episiotomy performed. Required two extensions.

0800 hours – delivery of baby in poor condition

Experts:

•  asphyxia due to prolonged time on the perineum;

•  earlier and more extensive episiotomy was required; and

•  delivery ought to have been expedited given no concrete evidence that FHR satisfactory.

Case example: ambiguous request •  Specialist referred a patient for investigations, including

one request in the corner of the form. He later alleged he requested ‘BC’ – blood cultures. The lab interpreted the request as ‘BSL’ and performed a glucose test.

•  The specialist alleged he assumed, as there was no telephone notification from the lab, that the test was negative. He didn’t review the written report.

•  Patient’s infective endocarditis went undiagnosed and he required major heart surgery.

Case example: change of instructions

• G and M v Armellin •  IVF patient signed form for procedure involving transfer of

‘one to two embryos’.

•  However, the parties agreed that on the day of the procedure, the patient told Dr Armellin verbally that she only wanted one embryo transferred.

•  Dr Armellin assumed and therefore did not check that these instructions had also been advised to the embryologist.

•  Embryologist had prepared the ‘standard’ two embryos for transfer.

•  Two embryos were transferred, resulting in twins. Patient’s wrongful birth claim was successful.

Case example: failure to act on CTG order •  32 year old, first pregnancy, 40.5 weeks

1120 – induction with Prostin. CTG for an hour.

1350 – concerns about hyperstimulation. Request by doctor for further CTG. Midwife says she asked the doctor to review the patient. Doctor denies this request was made and did not review the patient.

1400 – change of midwives. No mention of need for further CTG at handover. No further CTG performed.

1725 – vaginal delivery of a male; Apgars of 1, 1 and 3.

•  Expert critical of:

•  Inadequate handover between midwives, such that the further CTG was not undertaken.

•  Inadequate communication between doctor and midwives, leading to delay in medical review.

Case example: failure to act on investigations •  Premature baby, treated for hypoglycaemia and for jaundice by

phototherapy. By day 7 the baby's bilirubin improved and treatment was ceased.

•  Blood tests at 0520 hours on day 11 revealed bilirubin of 349.

•  Computerised records clearly indicate results were accessed by several nursing staff.

•  Late on day 12, a nurse reviewed the charts and noted the abnormal bilirubin had not been acted upon. A doctor was alerted and the baby commenced on phototherapy, but developed brain damage.

•  The nurses caring for the baby in the intervening period noted that:

•  Usual practice of writing results in the patient chart was not followed.

•  Usual practice would be to notify a doctor of the abnormal result – but there was no record whether that occurred.

•  They thought it likely they informed the doctor, who said he would look into it. They made no notation as they had no reason to think he would not attend the patient.

Case example; failure to use bed rails as ordered

•  Confused patient had an order that bed rails be used. Order was documented in the nursing notes at the time the order was made and was implemented that day.

•  On a subsequent nursing shift, the order was not noted in the handover. Bed rails were not used in the next shift.

•  The patient tried to get out of bed, fell and suffered a subdural haematoma, resulting in a major brain infarct.

Additions/Amendments

Additions:

• Write ‘addit’ – make it clear.

• Sign, date and time the addition.

• Do not go back to the original entry and try to insert further information.

Amendments:

• Never obliterate the incorrect entry – no whiteout. Single line cross out.

• Write ‘written in error’.

• Sign, date and time.

Remember!

• Your records may be viewed by:

• The patient.

• The Coroner.

• The Court.

• AHPRA.

Case example: Alterations to records •  Mother presented in advanced labour. Breech position.

•  Presenting part delivered before doctor arrived. Numerous efforts by midwives to deliver the head – unsuccessful.

•  Doctor arrived 11 minutes later and delivered head. Baby in poor condition.

•  Mother requested and was provided with a copy of her records at the time of discharge.

•  Midwives made notes of attempts made to deliver the head one week later.

•  Patient’s solicitors had a different set of records to those which the hospital had. Discrepancy only discovered at mediation.

•  Patient’s solicitors impugned the midwives’ credibility - alleged they had ‘Googled’ what actions they should have performed and then completed the notes.

Case example: False ‘observation’ records •  Suicidal patient was placed on 15 minute observations.

•  Nursing staff had developed an informal practice [unknown to medical staff] whereby overnight, they would perform observations once per hour then retrospectively enter their ‘observations’ for the 15 minute timeslots of the preceding hour. Observations were not performed as required.

•  The patient suicided overnight.

•  The nursing staff were obliged to admit in evidence in the Coroner’s Court that they had recorded ‘observations’ that they had not performed, in the period immediately prior to the death.

•  These admissions had potentially serious consequences for the nurses from an employment, disciplinary, civil liability and even criminal liability perspective.

When can poor documentation lead to liability risks?

2. Proof...

• From a defence perspective, it is not about what you did, it’s about what we can prove that you did.

Why? •  There is usually a conflict between what the patient says

occurred and what the defendant doctor or midwife says occurred.

•  Claims by a patient may be first notified to a defendant up to 13 years after the event in Victoria, in the case of an infant claim [12 year limitation period plus one year to serve writ].

•  A. The defendant has no memory and no record.

•  B. The defendant has some memory but no record.

•  C. The defendant has no memory but a good record.

• D. The defendant has some memory and a good record.

• Good documentation is the best defence.

Case example: record of fertility advice •  The patient attended the hospital with abdominal pain, 6 months

after a tubal ligation. Investigations showed an elevated BHCG, and she was admitted for observation.

•  The doctor’s records state that the patient had a presumptive diagnosis of a resolving ectopic pregnancy. She remained in hospital until her BHCG fell.

•  The patient later became pregnant again and sued for ‘wrongful birth’, alleging she was never informed that:

•  she had an ectopic pregnancy; or

•  her tubal ligation had therefore failed.

•  The doctors were confident that they had advised the patient she had an ectopic pregnancy, and therefore, her tubal ligation had failed and could not be relied upon to prevent conception.

•  However, the records did not specifically record that the patient had ever been informed regarding the diagnosis, or implications for her future fertility.

Reflections post incident

•  Private journal entries at home:

•  You will be asked for them.

•  They will be read out to the Court.

•  Therefore, keep them limited to the facts. Do not include criticisms of others.

•  This also applies to emails with other staff members.

•  If they are limited to the facts, why aren’t they being recorded in the medical record?

Questions?

Thank you!