The written word has launched a thousand ships; declared an independence; started or ended a war, created contracts, written poetry, novels, classic novels and in general is a method of communication between two people or thousands of people. The written word has existed since the dawn of time with cave drawings and eventually languages finding an ability to communicate with each other. Personally, I have written thousands of words since I first learned how to write and even today, I write on a daily basis as an attorney, a medical provider or just a letter to my kids.
Wearing my attorney hat, I’m appalled at some of the written material I have reviewed related to emergency medical services (EMS) cases involving complicated or simple medical care resulting medical malpractice, death or severe disabilities for patients seen by EMS providers.
The short story is, writing a complete narrative or fire report will “save your bacon” during times of litigation. Writing a medical or fire report is a simple process of following the rules of document completion when working with patients for those important 15-20 minutes or as a result of a fire you fought and extinguished. Telling your story in your words is important.
Why document? It’s required by your department and probably the health department in your state and our memory is fallible. Your memory is especially fallible when your case comes to court, usually just at the end of the statutory period. For example, in Washington State the statutory period is three years for medical malpractice or longer in other civil or criminal cases. Documentation is your recall memory.
How long is your actual memory of remembering details related to a fire response or an EMS call? Most experts would say our precise memory is around two days to remember the valid points of any call or an event. Time blurs those memory lines. Sure, we can remember the call if it was significant, but the “nothingburger” calls such as placing the elderly person back to bed, not so much. We forget the details and its incumbent on us to make sure that we have that memory committed to a writing most likely in an electronic format.
Your documented events can be used to refresh your memory during a deposition or while testifying in court. Your documented recall memory is also used in an affirmative defense, indicating that you did everything right for the patient or during the alarm, following protocol, procedures or state law. Your recall memory can also include photographs, electronic videos, and voice recordings.
Who read your writings? Everyone starting with your boss, elected officials, the media, the police, certainly attorneys on both sides of the issue, and sometimes the prosecuting attorney if this is a criminal case.
Your documentation must be complete to include proper sentence structure, use of words, and appropriate abbreviations. In general, we follow an approved format that has been institutionalized in our business for many years. The format we use in emergency medical services follows a SOAP format which stands for Subjective, Objective, Assessment, and Plan. The Subjective part is essentially what the patient tells you, including all medical history, medications, and the purpose of the call. The Objective component is what you see, what you feel and what you record, such as blood pressure, bleeding, injury, cardiac arrest, respiratory distress, and those types of objective findings. Following these is the Assessment, which is crucial as it determines the kind of treatment you will provide to the patient. Finally, is the Plan. We are not trained to be diagnosticians, but our training and experience lead to a conclusion that you would use for the Plan section, which is the treatment provided to the patient. Then document the interactions of improvement, no improvement or whatever occurs after a treatment is provided.
Please read your narratives out loud before pushing the save button. Reading your documentation out loud may reveals a lot of errors, especially in medical terminology, your intent, and ultimately the outcome of good patient care. Documentation should represent the facts of the issue and not your opinion of what you think the problem is. Stating facts will help you and the outcome if you become sued or are part of litigation related to your patient care.
The essentials of documenting medical care mean you are not writing a novel but reporting the critical issues during your short time with your patient. The ultimate point is, did you write enough to avoid reliance on your memory when the case comes to trial? Remember, if you write something in the document, such as an opinion or hearsay, it will harm you or your department in your defense during a litigation experience.
You are writing a report for someone else to read. Ensure the information is complete, describe the complaint and pertinent questions, and list all examinations and treatments according to your protocols. We tend to document more critical calls but not so much on the small or frequent flyer calls. For example, the large MCI or severe trauma call instead of the patient in the nursing home who fell to the floor. We believe that there will be a lot of litigation resulting from a large MCI or shooting and probably no litigation resulting from picking up and placing the nursing home patient back into bed. In my experience, we get more lawsuits from the nursing home calls due to potential neglect of the patient. Not so much from your brief interaction with the patient, but from a cascade of events that placed the patient on the floor. Did you check for a head or pelvic injury or merely pick the patient up, place them back into bed, and leave the scene missing the pelvic fracture or epidural hematoma. The conclusion here is, we performed a poor exam, and we provide poor service.
Good writing is a difficult skill, and many of us have found taking shortcuts in a method of communication, especially in the written word, has been damaged by the increased use of technology. For example, many of us will Tweet using 280 characters to convey a message between ourselves, our family, and our friends. There appears to be less use of reference materials such as books, magazine articles, and other available materials. We tend to Google a lot of what we need to make a decision. Even in law school, where books used to be the norm, technology is taking over our ability to research and we get used obtaining our information from Lexis/Nexus and other research sites and less use of the law school library.
This technology has resulted in the loss of creative thinking or loss of ability to think through a problem. With Fire, Rescue and EMS events, critical thinking is an essential component of our job. I believe although we have the technology available; we have lost the ability to think through a problem. Instead, we “Google it.”
For many of the immediate issues that we deal with, we cannot take the time to use these resources as much of that material need to be readily available as muscle memory or that giant computer known as your brain. For example, if you’re an engineer on a fire engine and have to be able to calculate pump pressures, those need to be immediately available. If you’re the paramedic on a cardiac arrest, you need to immediately be able to calculate IV drip rates, especially if there are multiple medications involved.
Your documents must be created in real-time, which means right after the call has been completed and you drop your patient off at the hospital or the doctor’s office or leave in-home and before the next event occurs. Most certainly, completing your document must be accomplished before going off shift for any period of time. Most departments have some policy in place that dictates the time of creating these reports of the events. Do not attempt to create a document after the fact, especially if you receive a summons and complaint when a former patient sues your department. The saying goes, “if it is not written down, it did not happen.” Remember that your memory is fallible, and many lawsuits won’t occur until nearly the end of a statutory period of three years for medical malpractice.
When a fire event concludes, additional information is generally compiled from other responding apparatus or agencies and that my take several days for the complete report to be prepared. Ensure that you document your observations on location, especially during a response to potential crime scenes, arson fires, and assist the investigators and putting into detail vital information that may lead to a successful prosecution.
All completed submissions must be reviewed by a member of the organization who is currently on shift and has been designated a person or is in a position to do so. This could be the shift battalion chief or the MSO reviewing all documents at the end of the shift.
All documentation should reflect the facts in your independent findings. Do not record other individual opinions or hearsay. You may be able to report civilian declarations, which may be tossed out in court; it will help your recall memory during deposition, interrogatories, or trial.
Restraints used – For EMS calls, it is essential to document any use of restraints, either physical or chemical, any unique position and such four-point restraints, and if any equipment failures may have occurred during patient care. It is better to disclose information early instead of finding out later during a deposition or a trial. The documentation of the use of chemical restraints is essential in light of the issues occurring in Aurora, Colorado, when the paramedics used a medication called Ketamine on a patient named Elijah Mclean, who died as a result of restraint by the police and the overdose of the medication by the paramedics.
Every Patient Documented? – A question that keeps coming up is, do I have to document EVERY patient we see? There are two significant cases in California. The first case is Wright v. City of Los Angeles 219 Cal. App. 3d 318 (1990) – Duty to Act. EMS found a patient lying on the ground after an assault, and in control of the police had a duty to perform an examination sufficient to determine if the patient had an illness or injury. The failure to perform this examination could result in death or severe injury and is gross negligence. Wright died a very short time later from Sickle Cell Crisis. The paramedics were found liable, and the plaintiffs were awarded millions.
The second case is Zepeda v. City of Los Angeles 223 Cal. App. 3d 232 (1990). A shooting scene was unsecured; paramedics waited for the police, Zepeda died. Once EMS begins examination and treatment, a duty of reasonable care is owed. The court stated – No “special duty” to provide aid. They received the call, responded quickly, and were prepared to manage the call so long as the scene was safe. There is no duty of care to a victim until EMS undertakes examination and treatment.
The short story is medical documentation is a legal record that preserves and transmits information and defines your professional credibility. Your documentation will be used in civil and criminal litigation, and refusals must be obtained and well-documented.
Social Media: Do not post your EMS calls for any patient interaction on your social media, as many providers have lost their jobs due to that error in judgment. A few states have made it a crime for EMS providers to post pictures or information about their patients.
Refusals: Patients can refuse care even though it appears evident that care is necessary. A good acronym for refusal issues is CASE CLOSED for your interaction with the patient. Always document refusals carefully, and the goal of the refusal documentation is the limit your liability. (1)
C= Condition, Capacity, and Competence
A= Assessment
S= Statements.
E= Educate.
C= Consequences.
L= Limitations of EMS.
O= Offer Transport.
S= Signature.
E= Educational materials.
D= Dial 9-1-1.
There are a few simple rules in managing patients to refuse care. Most EMS Systems and protocols would indicate that the patient understands what you’re telling them is contained in the refusal document. The patient must be oriented to person, place, and time and not show any obvious cognitive defects. They must be free of the influence of alcohol and drugs or any mind-altering substances nor have any injury or medical condition that affects their judgment.
A patient must not have expressed an intent to suicide during the episode related to the call you are currently on. The patient must demonstrate the ability to explain the decision back to you that they are making and any possible adverse outcomes, including death or devastating injury.
Refusals must be in writing and signed by the patient or guardian or responsible person managing the patient there, and there should be a witness to the report of any agreement the patient has made to refuse care. As a provider, you must read the refusal document to the patient, assess the patient’s capability or capacity to refuse care, and document that capacity in your narrative. You also must consider the patient’s competency, defined as sufficient understanding and memory to comprehend the current situation, and understand the consequences of their proposed actions, as these are usually legal decisions made in a court of law. However, you’re making the decisions in the field.
Obvious Death: Your documentation must indicate all signs of this event, including time down, EKG findings, patient color, temperature, and any witness statements and possible cause of death, for example, trauma. This is especially important when you’re responding to a patient and their family members are present and watching your every move. It is essential to be accurate detailing the aspects of the obvious death.
Records Retention and Release: Retention of records is a policy created by your State and department. The department must follow those retention guidelines and follow the records destruction schedule as outlined in those records retention laws. Paper documents must be shredded to protect patient information and even your own employees’ protected information. Electronic records have their related method of destruction outlined in policy and the law. DO NOT place records to be destroyed in a dumpster.
Ensure that your department has a records release policy that allows legal access to your documents either by a subpoena for a records release made by an attorney or even the police department. If you’re a billing entity, the billing agency must have a business associate letter allowing the billing entity to receive protected health information on your patients.
Remember HIPAA ((Health Insurance Portability & Accountability Act (www.hhs.gov)) is in your guidelines for releasing information protecting patient information. Also, remember medical records in an unprotected environment may violate HIPAA or your States patient privacy laws. You and your organization must control access to the document.
Electronic Medical Records: Although EMRs are integrally related to improving patient safety, adopting EMRs may raise new risks of malpractice liability through data loss or destruction, inappropriate corrections to the medical record, or inaccurate data entry. There are recorded events of unauthorized access, and errors related to problems during the transition to EHRs are potential liability issues.
Storage: When storing electronic files, ensure your IT department has adequate storage in the cloud or some remote server with a robust firewall. These tools are in place to prevent a hacking or ransomware event from affecting your organization. Paper documents must be stored in a dry and secure space.
Click the Box or Narrative – Which is better? Narratives are your substituted memory describing the actual patient condition in real-time. Clicking the box and writing a narrative is imperative to complete medical documentation. Many of the cases which appear to be “routine” on the surface are the ones that will “get” you. In the EMR, there is space for supplemental narratives if you need to add additional documentation for an event involving a crime, assault on the provider, or any abuse reported, such as a child or elder abuse which are essential in pursuing criminal action.
Modifying the medical document: There is a misconception that we cannot touch the record after it has been done, which is not valid. There is no reason to change the original narrative in your report, and if you intend to do so, it questions the entire document. There’s always the opportunity to access the documents to make additions to the document, which are generally date stamped and timed. Ensure there is a single point of access available in your organization if the provider needs to add medical information to the document. Do not allow unlimited access to these reports by any organization member. Never, ever falsify information in a report, destroy a report or fail to write a report. Never document your opinions, make assumptions or blame another provider.
Spoliation: It is imperative that your medical and other information is protected from deletion or destruction by the author or others. Spoliation is a crime in every State and includes medical records, EKG, video recordings, recordings of any type, and material in your cell phone related to the event. You must preserve relevant evidence and medical information.
Crime Scenes: Documentation of a crime scene is essential as you are often the first responder arriving on location. You must describe the scene precisely as it appeared upon arrival and describe everything you may have disturbed during patient treatment and transportation. If you left equipment at the scene must document what he left and where I was left. Observations, not conclusions, should be noted.
Only do and document that you feel comfortable defending in a court of law. The medical record is the only actual proof of the care and treatment provided to the patient. If ANY of the information is incorrectly entered brings the whole document into question, and your documentation tells the story of the patient’s time in your care.
In almost 100% of the cases, the outcome of investigations and court cases resolved in your favor directly result from the quality of your documentation.
Work on your documentation skill as part of your continuing training to tell the patient medical story and prevent litigation.
Footnotes
JOHN K. MURPHY, J.D. M.S, PA-C, EFO, began his fire service career as a firefighter/paramedic and retired as a deputy chief after 32 years of service. He is an attorney licensed in Washington whose focus is on firefighter health and safety, firefighter risk management, employment practices liability, employment policy, internal investigations, and expert witness and litigation support. He was a Navy corpsman with the Marine Corps. He is a lecturer, an educator, an author, a legal columnist, a blogger, and a member of Fire Engineering’s Fire Service Court Blog Talk Radio Show. He is a national lecturer at many conferences speaking about the legal jeopardy facing Fire and EMS services. He is a Keynote Speaker at several state and local conferences. He is a National Fire Academy instructor and a distance learning instructor for the University of Florida Fire and Emergency Services programs and North Seattle College Fire Law Program.
This commentary reflects the views of the author and not necessarily the views of Fire Engineering.
