InfoLAW: Quality Documentation: Your Best Defence

The Canadian Nurses Protective Society (CNPS) frequently receives requests for information regarding documentation issues or concerns. Nurses working in all areas of patient care encounter issues related to documentation, whether in paper or electronic form. Quality documentation can be a nurse’s best defence in the face of a complaint, claim or legal proceeding. Addressed below are some of the more frequently asked questions we receive pertaining to documentation.

What is the purpose of documentation?

The primary purpose of documenting in the patient’s chart is to record relevant patient information so that the patient receives the best and most personalized care.

Documentation is also necessary for:

• • communication between health-care providers;
  • promoting continuity of care;
  • meeting legislative and professional requirements;
  • showing accountability for the professional practice, and outlining the nurse’s commitment to providing safe, effective and ethical care;
  • quality improvement;
  • research;
  • acting as legal proof of health care provided.

When a patient commences a legal proceeding, the courts rely on nursing documentation as evidence of the care that was provided. As many legal proceedings are not commenced or litigated until several years after the provision of the nursing services, the patient’s chart often becomes the only reliable source of evidence in regards to the events that occurred and the care that was provided.

The requirement to document patient care is established by legislative provisions,¹ regulatory bodies,² employer standards, and in the standard of care determined by the courts. For example, most nursing regulators have documentation standards or guidelines to ensure that nurses know what principles and practices to employ. In addition, workplace policies typically address the expected frequency and method of documentation for nurses. Failure to meet standards can result in disciplinary action against the nurse and can also undermine a nurse’s defence in a legal proceeding.³

What are the legal implications of charting?

The courts look to a patient’s chart for a chronological record of all aspects of the patient’s care from the time of admission until discharge. Courts use nursing documentation in a legal proceeding to reconstruct events by establishing times and dates, helping the witnesses with their recollection, and resolving conflicts in testimony.

The patient’s chart may also be entered as evidence to support a nurse’s defence in a legal proceeding. The nurse’s lawyer will rely heavily on the chart to establish that the nurse’s actions were “reasonable and prudent” in the circumstances and to show that the nurse did not cause or contribute to the patient’s injuries. Conversely, the patient’s lawyer will use the chart to try to show that the nurse failed to meet the standard of care of a reasonable and prudent nurse. Nurses should keep in mind that, in the event of litigation, entries will be reviewed line by line by lawyers, experts and judges as a normal part of the litigation process.

In one lawsuit, a nurse’s note played a major role in the dismissal of a case against a hospital and its nurses. The court found the emergency room physician negligent for failure to make a risk assessment of the patient based on the urgent nature of the nurse’s note. The judge stated, “… nurses’ notes must form the basis or starting point for an emergency room doctor’s opinion, and of course the treatment he subsequently renders.”⁴

Nursing documentation can also be used as evidence in other legal proceedings, such as regulatory investigations and disciplinary matters, criminal proceedings, coroner or medical examiner investigations and inquests, and labour arbitrations.

How much documentation is enough?

The frequency and amount of charting detail are dictated by a number of factors including:

• Facility or employer policies and procedures
• The complexity of the health problems
• The degree to which the patient’s condition puts them at risk
• The degree of risk involved in the treatment or care

Documentation should be concise, factual and objective. Documentation should be more comprehensive, in-depth and frequent when the patient is very ill or exposed to a high degree of risk to ensure the patient record fully captures the complexity of the patient’s condition and the care provided.

The preferable course is that all nursing assessments and interventions be charted, including

• Any communications (and attempts to communicate) with physicians and other members of the health-care team;
• Information related to the administration of medication or the performance of nursing procedures;
• Any relevant comments made by the patient, the patient’s family or substitute decision maker, and other visitors.

Is it necessary to chart contemporaneously?

Patient health records are such an important piece of evidence that the Supreme Court of Canada has stated that hospital records written contemporaneously, including nurses’ notes “should be received in evidence as prima facie proof of the facts stated therein.”⁵ This indicates that what a nurse documents in the chart is taken at face value and accepted as fact unless proved otherwise.

For accuracy, courts have stressed the importance of documenting at the time of an event or as close to it as is prudently possible.⁶ Undue delay between the occurrence of the event and the recording may result in a court’s refusal to admit the record as proof of the truth of the event, thereby giving the evidence less weight or questioning the credibility of the information or witness.

If a late entry is necessary, it should be completed as soon as reasonably possible after the events. The standards of nursing practice and the documentation policies of a nurse’s institution or health authority provide guidance on how to prepare a late entry. In fact, where nurses are expected to complete contemporaneous documentation, entries made at the end of a busy shift may not hold the same weight as frequent entries made during the course of a nurse’s shift.⁷ An appropriate reason to proceed with a late entry might include adding factual information that is not already contained in the chart and that could be considered significant in understanding the course of events or the rationale for an intervention.

How can an error be corrected?

Charting mistakes happen. Before taking steps to “correct” the health record, consult the documentation and charting policies of your nursing regulator and employer.

To correct a paper record, best practices generally advise to draw a line through the incorrect entry, ensuring that it is still legible, and then date the entry. The nurse can then add a new entry along with the current date, time, and their signature. For electronic records, following the policies and procedures of the electronic health record system ensures that the original record remains intact and is readily distinguishable from subsequent entries. Please keep in mind that the employer may have additional steps to follow concerning charting errors.

Is third-party charting acceptable?

Third-party documentation occurs when someone other than the nurse who provided the care charts information. Generally, it is not advisable. Because of rules related to evidence and the potential for cross-examination in court, the nurse or other health-care provider who has first-hand knowledge of the event should be the person who documents it. An exception is made for a designated recorder during an emergency response.

Risk-Management Considerations

Effective charting is important to providing proper patient care as well as preventing and defending legal proceedings. Nurses should be mindful of the following risk-management considerations when documenting patient care:

• be familiar with any guiding documents from their nursing regulator and act in accordance with any applicable standards of practice;
• review any applicable policies, guidelines, procedures and/or processes put in place by their health institution to guide the nurse’s practice in relation to documentation;
• document at the time of care or as soon as possible after providing care;
• document often, carefully and thoroughly, especially during transitional periods, such as handovers, shift change and patient discharge and during critical periods of patient care
• avoid preparing personal notes outside the chart.⁸

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. For example, the Operation of Approved Hospitals Regulation, Alta Reg 247/1990, made pursuant to the Hospitals Act, RSA 2000, c H-12.
2. Many nursing regulators have documentation standards or guidelines for their members, e.g., College of Nurses of Ontario, Documentation, Revised 2008 and College of Licensed Practical Nurses of Nova Scotia and College of Registered Nurses of Nova Scotia, Documentation Guidelines for Nurses.
3. For example, in Sozonchuk v Polych, [2011] ONSC 842 where the trial judge stated “I also do not consider [the nurse’s] evidence at trial to be reliable given that in many cases she failed to make any record of events she was testifying to.”
4. Legal Proceedings are used within this context to refer to various types of proceedings including civil claims, professional regulatory matters, coroner’s inquests, employment related arbitrations etc.
5. Skinner v Royal Victoria Hospital, [1993] OJ No 1054 at para187 (Gen Div) (QL).
6. Ares v Venner [1970] SCR 608 at para 609.
7. Ibid.
8. See also infoLAW, Evidence (Volume 18, No 2, December 2009).

October 2020.

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.