Chapter 4 DOCUMENTATION AND ADMINISTRATION

Chapter 4 DOCUMENTATION AND ADMINISTRATION

DOCUMENTATION PRINCIPLES 4:1

Charting the Patient’s Care 4:3

Fundamentals and Nevada Law 4:4

Conclusion 4:7

INSTITUTIONAL PROTOCOL 4:7

Conclusion 4:8

INFORMED CONSENT 4:9

Conclusion 4:11

PATIENT CARE BY TELEPHONE 4:11

Conclusion 4:12

PATIENT PRIVACY 4:13

Compelled Disclosure 4:13

Conclusion 4:17

Statutes & Regulations

DOCUMENTATION PRINCIPLES

In litigation or any other legal action concerning nursing care, documentation by the nurse of observations, assessments, and interventions is just as important as the care rendered. Any authority conducting a review of patient care is sure to give great weight and credibility to a narrative “record.” This record is typically assembled through various documents that objectively reflect the circumstances and events of patient care as they contemporaneously transpired. Courts adjudicating medical malpractice claims will consider not only whether the care given substantially deviated from an appropriate standard of care, but whether the documentation itself deviated from the quality, frequency, and detail of documentation expected according to a similar standard of care.

Without proper and complete documentation, an anemic record may convey the impression of ambivalence and uncaring neglect suggesting the nurse failed to administer even the most customary attention. A recent case well-illustrates this point; that often the record taken alone portrays a strikingly different account of events than perhaps truly occurred. In Boston, a young man was found on a cold winter night by an ambulance crew sitting in the street and suffering extreme alcohol intoxication. The twenty-six-year-old was rushed to a local hospital despite his drunken protestations. He presented at the emergency room as responsive to pain, able to speak and move his extremities, without apparent trauma, but obviously very drunk. Nevertheless, the court subsequently found it would have been obvious to any health care professional under the circumstances that the man was at grave risk from depression of the respiratory system. On admission, there was no record that the young man’s vital signs were taken. Chart notations indicated only that he was placed on his side on a stretcher in a “bypass” location of the emergency ward. The man subsequently coded and died approximately one and one-half hour after his admission to the hospital.

The administrator of the patient’s estate sued the duty nurse, the emergency room physician, and the hospital claiming that the care given was negligent and that the young man should have been monitored more closely. Although the parties ultimately settled their dispute, a Massachusetts Court of Appeals found that, based on the record submitted, the nurse’s conduct substantially deviated from the appropriate standard of care. Feeney v. New England Medical Center, Inc., 615 N.E.2d 585 (1993). Specifically in its findings, the court emphasized the significance of the patient’s chart which contained sparse and contradictory information about the nurse’s attention to this patient. According to the “Emergency Record,” after the patient’s admission he was not checked again until some forty-five minutes later when he was brought to the examining room. There the duty nurse noted that the patient was without respirations, cyanotic, and with pupils fixed and dilated. However, in the “Physician Documentation Record,” the emergency room physician reported second-hand on information from the duty nurse that the patient was checked about twenty-five minutes after admission and found in distress. By either account, the Court felt that the nurse clearly failed to monitor the patient properly and that the patient’s death was at least in part attributable to this negligence. The Court stated that the minimum standard of care on the nursing side called for monitoring the patient every fifteen minutes to observe changes in the patient’s breathing patterns or respiratory arrest: “Had the standards been maintained, respiratory arrest might have been averted or overcome.”

Obviously, one can sympathize that in a busy metropolitan emergency room it is often impossible or at least impractical to note on a patient’s chart every occasion in which a nurse visually checks on a patient or observes vital signs. Or perhaps the staff of this Boston hospital did not fully appreciate the level of intoxication, but the autopsy report revealed an ETOH blood level of 0.39%. However, if the nurse had documented each time [s]he observed the patient, conformity with the fifteen-minute standard cited by the Court might have been conclusively established, saving the nurse from an adverse malpractice judgment.

This section is intended to familiarize the practicing nurse with principles that should guide accurate and responsible record-keeping. Good documentation practice is an important professional skill that must be developed as a matter of course and routine. Whenever relevant in this section, the appropriate Nevada law and standards established by the American Nurses Association or other professional organizations will be cited and discussed. In other instances, anecdotal accounts based on real cases from other jurisdiction are used to illustrate various points.

Charting the Patient’s Care

Every health care delivery system develops its own protocol and procedures for documenting nursing care as part of the patient’s overall medical record. Overall, the medical record must be complete, authenticated, accurate, and current. In the event that a patient sues a nurse, or should the State Board conduct disciplinary proceedings, the nurse’s legal defense will be best equipped when provided with the most comprehensive record possible.

The documentation maintained by a nurse should reflect and record the three basic aspects of patient care: assessment and observation, action or intervention, and patient response. The language used in documentation should be professional - meaning accurate, thorough and objective with appropriate technical terminology. It is critical that the nurse note every occurrence of routine care administered during rounds. Even the observation that all is well and normal should be recorded to document the regularity of recording vital signs and respiration. Other critical circumstances meriting especially attentive documentation are abnormal vital signs, when a patient codes, and when a patient is transferred. These contexts are discussed in greater detail below.

Abnormal Vital Signs. When a nurse observes a patient’s abnormal vital signs, the nurse must precisely document the specific variation, such as fever, blood pressure spike, or depressed respiration, and also the specific action taken to address the condition. If the attending or patient’s personal physician is contacted, the nurse should record the time and manner of the call, the doctor’s response, and if the nurse followed the doctor’s orders. If the nurse is unsuccessful in reaching the physician, this should be noted too, along with subsequent calls and whatever other action is taken. If changes in vital signs are not dramatic or warrant no more drastic action than simply more closely monitoring the patient, this too should be noted in the patient’s record. Every abnormality should be recorded until a satisfactory result is obtained, including whatever fluctuations are observed in the interim.

Patient Distress. When a patient codes, documentation is especially important and equally difficult. It is simply not possible to recount at some later time everything in detail that has transpired in haste. The patient’s immediate care needs are paramount and until the patient is stabilized the nurse will not have an opportunity to reflect and record all that happened. But most often legal claims and peer or professional reviews focus on nurse conduct during these critical moments before and during an episode of patient distress. Many hospitals and institutions have recognized the difficulty of maintaining a patient’s chart during coding and special care logs are kept in crash carts to allow for simultaneous notation by a member of the crash team. This individual records each intervention on the sheet, often using “punch tabs” or “check boxes” that are designed to anticipate the most common procedures during distress. When the patient is stabilized, all the documentation generated during the code should be assembled and reviewed to make sure it is accurate and complete.

Patient Transfers. When the patient is transferred from one unit to another, or from hospital to another care facility, an comprehensive assessment is usually made so that the successive care provider is adequately informed of the patient’s history, condition, and indications. A similar complete assessment should be made when a patient arrives in a unit. This assessment will then be updated at the beginning and end of each nursing shift rotation.

Fundamentals and Nevada Law

As mentioned earlier, many health care delivery systems and even particular care units develop their own methodology for documenting patient care. A unique form or flow sheet might be used that contains check-boxes to easily record the most routine nursing functions, such as feeding, medication administration, bathing, and monitoring/recording vital signs, IV lines, or patient disposition. These forms should be used whenever appropriate taking care that any particularity that the form might not allow is recorded in that documentation as well. So, if a patient is conscious, but slow to respond, the impairment should be noted alongside the form box chronicling “patient conscious.”

Details are also imminently important and observations should reflect any noteworthy attribute. The nurse should record the color, consistency, and quantity of any drainage or discharge. If precise measurements are not possible, the nurse should describe the amount in concrete illustrative terminology. For example, a bruise “the size of a baseball” is far more helpful than “light bruise” observed on the patient’s abdomen. The nurse should also note deficits as well; if the patient is unusually lethargic or non-compliant, complaintive or disagreeable, these observation should be recorded - quoting the patient directly if possible. Often many after-the-fact reviews focus on issues of timing: whether the nursing staff was attentive and responsive according to prevailing professional standards. Nurses should always record the date and time of any observation or intervention.

Acronyms and abbreviations make documentation more efficient, but care should be taken to make sure that the record is comprehensible and definite. Many health care facilities develop acceptable acronyms and abbreviations which become standard usage at that institution. It is important that whatever system is used, some reference is available to establish that each notation has one and only one discrete unique meaning.

If an entry must be deleted or revised, the nurse should not obliterate or erase the original entry, but rather a thin line should be drawn through so that is remains legible. This is important to avoid the creating the impression of “doctoring” the record in order to evade responsibility. Indicate the end of an entry by drawing a line through any remaining space after the notation, similar to marking out empty space on a check.

Any interventions or protective measures, or lack thereof, should also be recorded in the patient’s record. Use of protective measures such as bed rails or restraints should be clearly memorialized, taking care to note the time these measures are implemented, the reason for their use, and the duration of use. The patient’s medical record should not be used to accuse or blame the patient or others. Each entry should be as neutral and objective as possible, based solely on first-hand observations or on information reported directly from the patient. When the nurse reports information conveyed by the patient or a colleague, the source of the information should also be noted.

When a patient is discharged, the record should reflect immediate and long-term care directions. Any material or medications given to the patient at discharge should also be noted. Care instructions given to the patient, whether oral or written, should also be memorialized in the patient’s record. A sixty-seven year-old female hip replacement patient settled with a Louisiana hospital for $75,000.00 after she re-injured her hip falling off an elevated toilet seat given to her by the hospital for use at home. Moore v. Willis-Knighton Medical Center, 720 So.2d 425 (1998). In her lawsuit, the woman claimed that she was not given proper instructions in the use of the seat, the same model seat she had used for several weeks while recuperating in the hospital. As a result, she fell some two months after her discharge from the hospital. The duty nurse, assuming the woman was adequately familiarized in the use of the device given her experiences with it in the hospital, either failed to instruct the woman or did not note giving her the instructions in the woman’s medical record. In light of the record’s silence on the matter, the hospital administration decided it was more prudent to settle than to try to defend against the claim.

If a patient leaves the hospital against medical advice (AMA), the record should reflect that the patient was counseled against such action and that the patient was given care instructions with symptomatic indications that require immediate attention. Most hospitals require that a patient leaving AMA sign a form acknowledging the gravity of their actions. This subject is discussed in greater detail in this volume’s chapter titled “Patient Care Concerns.”

Under Nevada law, a current record, including nurses’ notes, must be maintained for every patient admitted to a hospital, long-term care facility, or nursing home. NAC 449.379 and NAC 449.403. Records must contain sufficient information to justify the diagnosis, warrant treatment, and vindicate the end results. Only members of the medical and house staff may write or dictate medical histories and physical examinations and a licensed physician must authenticate and sign records. Nevada law provides some specific mandates concerning documentation of patient care by a nurse, and the legislature has directed that some types of care require more detailed records than others. For example, in obstetrics care, the medical record of a maternal patient must include:

(1) a complete identification of the maternal patient including information about the next of kin and the person legally or financially responsible for the patient;

(2) a statement concerning the patient’s admission and diagnosis;

(3) the patient’s medical history;

(4) evidence of informed consent;

(5) any clinical observation made by the patient’s physician, nurse, or other professional care-giver;

(6) a report of all prescribed tests and examinations;

(7) confirmation of the original diagnosis, or the diagnosis at the time of discharge; and

(8) a discharge summary including provisions for continuing care or follow-up care after discharge. NAC 449.61156.

Nevada law also commands that certain nurses are responsible for maintaining the patient’s medical record. Under the Nevada Administrative Code provisions regarding general standards for the practice of nursing, the registered nurse is responsible for the documentation of observations, assessments, responses of patients, and the care provided by nurses for those patients. NAC 632.216. By comparison, under the relevant Nevada Administrative Code provisions regarding professional standards, a licensed practical nurse may collect data, perform skills, interventions, or other duties, and make chart notations if authorized by the hospital and under the supervision of a registered nurse. NAC 632.242. An advanced practitioner of nursing (“APN”) must maintain accurate documentation of all physical findings concerning a patient including the diagnosis, treatment, and any prescriptions written for a patient under the APN’s care. NAC 632.256.

Conclusion

Proper documentation of patient care is the best defense in any post incident review of nursing care rendered to a patient. The nurse should be vigilant and attentive, providing care that equals or surpasses the prevailing professional standards; but this care is best established by an accurate, comprehensive, and objective record of all observations, intervention, and patient response.

INSTITUTIONAL PROTOCOL

Most health care delivery systems generate written policies and procedures that establish appropriate protocol for care in certain given circumstances. Patient intake, evaluation, and discharge are care aspects most commonly regulated by internal procedures. Nevertheless, a hospital may distribute more elaborate and detailed directions on nurse rotation schedules and ward rounds. These written documents describing care regimens may in some cases provide a persuasive defense by establishing the appropriate standard of care when adhered to by the nurse. However, rigid care protocols may not apply to every patient under every circumstance and deviation from that protocol, although appropriate in the context, may incur liability by virtue of the departure itself.

When a new protocol is established, a nurse should carefully consider whether the directive accurately reflects prevailing professional practice standards and provides sufficient opportunity to exercise professional discretion and judgment. Any objections or suggestions for revision are best made at the outset when the procedures are in the formative stage. The administrative requirements for modifying established protocol can be cumbersome and often such review is initiated only when the protocol results in a negative patient outcome. Liability may also be imposed even where established hospital protocol mandates an acceptable level of care to which the nursing staff adheres and yet a court still finds that the protocol deviated from the prevailing standard of care.

Another case from Louisiana illustrates this possibility. According to the court’s findings, a twenty-three-year-old man died due to the hospital staff’s “nursing negligence” in failing to monitor the young man’s condition adequately. The patient, who was born with Sickle Cell Anemia and endured poor health during his entire life, was admitted complaining of shortness of breath and chest pains. He was diagnosed with multiple pulmonary infarctions and he subsequently developed pneumonia and suffered cardiopulmonary arrest. A medical review panel considered all the evidence, including the nursing notes, and concluded that there was no negligence by the hospital staff. Despite this apparent exoneration, the judge at trial concluded that the nursing staff was negligent for failing to monitor the patient every twenty minutes after a transfusion bag was hung. The judge predicated this finding upon testimony by the plaintiffs’ expert and despite the fact that the nursing staff apparently conformed with written hospital protocol. On appeal, the reviewing court reversed, holding that even if the nursing staff failed to monitor the patient closely enough the plaintiffs had not adequately proven that closer monitoring would have avoided the patient’s death.

Conclusion

Hospital protocol - written policies and procedures - does not provide any magical talisman against claims of malpractice. These mandates must be carefully considered and reviewed to ensure compliance and conformity with current prevailing professional standards. As an integral, active, and responsible component in the health care delivery system the practicing nurse should consider whether any proposed protocol is in keeping with good professional practice and speak out against any misdirected policies. Compliance with written institutional protocol will not necessarily shield a nurse from liability if the protocol substantially deviates from good practice or if in prudent judgment the protocol is simply inapplicable to the particular patient’s care needs and circumstances.

INFORMED CONSENT

As in every state, Nevada law requires that a patient give informed consent whenever possible and practical before medical care is rendered. Absent extraordinary circumstances, legal responsibility for obtaining the patient’s informed consent rests with the physician - not the hospital or nurse. Typically, courts reach this conclusion after determining that it is the treating physician who has the education, expertise, skill, and training necessary to treat a patient and determine what information a patient must have to give informed consent. These courts recognize that nurses and other non physician hospital employees do not normally possess knowledge of a particular patient's medical history, diagnosis, or other circumstances which would enable the employee to fully disclose all pertinent information to the patient. However, the nurse as patient’s care advocate does bear some professional responsibility to verify that the patient understands the nature of the course of care proposed and voluntarily agrees thereto.

Under Nevada law, before any surgical procedure is performed on a patient, the patient must execute a consent form which is then placed in the patient’s medical record. NAC 449.994. For the purposes of medical malpractice actions, informed consent is conclusively established when the physician has done the following:

(1) explained to the patient in general terms without specific details, the procedure to be undertaken,

(2) explained to the patient alternative methods of treatment, if any, and their general nature,

(3) explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks, and

(4) obtained the patient’s signature on a statement containing an explanation of the procedure, alternative methods of treatment, and the risks involved in each. NRS 41A.110.

However, under certain circumstances the physician is not required to fulfill the statutory obligations described above because the patient’s consent is implied. Consent is implied in emergencies when, in competent medical judgment, the proposed procedure is reasonably necessary to prevent death, disfigurement, impairment of faculties, or serious bodily harm. NRS 41A.120. Consent has also been implied by the courts when a patient self-presents for minor treatment or routine examination and the procedures normally carry little or no inherent risk.

Nurses are commonly involved in the informed consent process when assisting patients by explaining proposed care and the risks involved, or when acting as a signatory witness on the patient consent form that is added to the patient’s medical record. As a signatory, the nurse is affirming that the patient’s signature is authentic and voluntarily given and that the patient had legal capacity to make the decision. Legal capacity is established when a patient is of the age of majority and can appreciate the nature and consequences of a decision. If the nurse doubts the mental capacity of a patient, has reason to believe that the patient is not voluntarily making decisions, or perhaps is acting under family coercion, the nurse is obligated to refuse to sign the consent and must notify the unit supervisor and administrative authority.

A Wisconsin case is instructive on the vagaries of a nurse’s duty to verify a patient’s informed consent. During delivery of a woman’s third child, the woman’s physician performed a tubal ligation without obtaining her prior written authorization for the procedure. When the physician requested a particular instrument which would be used in the ligation, two nurse employees of the hospital indicated that, upon consulting the patient’s chart, there was no signed consent form on record for the procedure. The physician later claimed that the woman’s husband had given verbal consent for the procedure, which even if true, would not absolve the physician of his legal duty to obtain informed consent from the patient herself. The court examined Wisconsin’s informed consent statute, which is substantially identical to the law in Nevada, and concluded that responsibility rested squarely on the physician and not the hospital or the nurse. The patient complained that once the nurse recognized that the medical record lacked the requisite consent form, the nurse assumed a duty to prevent the procedure. The court concluded however, that once the nurse informed the physician of the form’s absence she had no further duty to prevent the procedure because the absence alone would not lead a reasonable person to conclude that the physician was performing a non consensual procedure. Mathias v. St. Catherine’s Hospital, Inc., 569 N.W.2d 330 (1997).

Conclusion

This chapter’s focus on documentation applies with equal importance to patient consent. Although it is well established that the physician is primarily responsible in the eyes of the law for informing the patient and obtaining consent before performing any significant procedure, the nurse is an integral part of the health care delivery system with responsibility to the patient’s best interests. The nurse should use good professional judgment to determine whether a patient has in fact given voluntary and informed consent. The nurse should note both the mundane and the extraordinary with equal precision in the patient’s record. Any challenge based on questionable consent may be averted if the nurse’s records are clearly persuasive to the contrary. Also, the nurse should be aware that once consent is given, it may be retracted by the patient and any indication by the patient of their desire not to participate in treatment should be honored and respected.

PATIENT CARE BY TELEPHONE

Remarkably enough, many patients expect that competent medical assessment and advice can be given on the sole basis of symptoms reported over the phone. Perhaps this phenomenon is a natural product of our increasingly electronic-oriented society and the pervasive Internet forum where advice of all varieties is freely traded. In response, some facilities have established “telephone triage” units to handle such phone requests for care. These units have carefully designed protocol and procedures designed to encourage patients to present in person and if that is not possible, nurses are permitted to advise on interim care. However, many nurses are increasingly concerned about the legal risks of liability if improper advice is given over the phone and these concerns are appropriate.

Both the Emergency Nurses Association and the American Nurses Association have issued position statements opposing giving advice over the phone, except in emergencies where instructions are necessary to prevent loss of life or in the event of serious injury. Otherwise, the groups recommend that a nurse advise callers that they cannot responsibly diagnose their conditions over the phone and that they should visit an emergency room or their regular physician for proper assessment and treatment.

Depending on the nature and extent of advice dispensed over the phone, a nurse may incur professional disciplinary review or adverse legal action for practicing medicine without a license. When a health care delivery system establishes protocol and procedure for handling telephone consultations, limiting the range of the permissible inquiry minimizes this potential, as well as advice that a nurse can offer. Often, suicidal persons seeking a sympathetic ear will contact a hospital out of despondence and without anywhere else to turn. These calls are particularly difficult to manage because it is impossible to determine whether the individual really presents a danger to themselves or others, yet lending a sympathetic ear may not guarantee that the person will not carry out the original threat. Furthermore, the desperate person may become reliant upon the support and comfort of a nurse and become a frequent caller, consuming resources and staff.

Nurses who encounter callers seeking advice or threatening suicide should take care not to render medical advice and to qualify their statements with a disclaimer. The nurse should immediately identify herself as a nurse and state that she is not qualified to diagnose the caller’s condition or dispense advice. A nurse should state at the outset of any call that if the patient’s concern was significant enough to warrant a telephone inquiry, they probably should contact their physician or seek professional care at the nearest clinic or hospital. The nurse should document the call, recording the date, time, and duration of the call. The nurse should inquire and document the caller’s name, age, telephone number, address, medical history, as well as the subject complaint of the call.

Conclusion

Telephone triage is becoming an increasingly common phenomenon that places new and extraordinary demands upon hospital and clinic nursing staff. If the hospital or other health care facility has considered the need for, and adopted protocol to handle care calls, nurses should follow these procedures assiduously and always caution callers to seek professional care in person. If the institution has not yet developed procedures to handle calls, the nurse should consider addressing the potential problems inherent in telephone triage. As always, thorough documentation provides the best defense to any claim arising out of these circumstances and record-keeping should be guided by the principles discussed earlier. Notations should be clear, concrete, accurate, and objective.

PATIENT PRIVACY

The necessary corollary to this section’s focus on documentation is the need to protect the privacy of the patient about whose care so much written record is created. Overall, the law and courts consider a patient seeking care to be very vulnerable and susceptible to a variety of imaginable offenses to privacy, not the least of which includes the potential for disclosure or exploitation of matters revealed in the patient’s medical record. Other precepts of good professional counsel are that the nurse should use common sense in not discussing private patient matters outside work, or in any way that might be construed as demeaning or inconsiderate while in the workplace.

The patient’s right to privacy is fundamental, beginning with the federal constitutional right to privacy. The law has traditionally recognized and protected the environment of confidence created between an individual and his or her physician including others intimately involved in the patient’s care. In fact, Nevada law states that “failing to respect and maintain a patient's right to privacy” or “violating a patient's confidentiality” is unprofessional conduct for a nurse and commission of either will bring harsh licensing punishment or other disciplinary action. NAC 632.890. This veneration of patient confidentiality is deeply rooted in strong public policy developed through history. This policy reflects an imperative need to foster an environment where people feel comfortable confiding in their physicians. Perhaps these notions are also practically-oriented as well: infectious diseases are more effectively combated when people have no fear of judgment or reprisal from their physician.

However, technology and other perhaps equally important public policy considerations have limited and also qualified the extent of the once almost absolute entitlement to privacy. For example, the electronic data storage media that contributes so much to the ease and efficiency of our modern daily lives also makes encroachment into private medical records far easier than ever before by permitting record retrieval and perusal from off-site locations. HIV, AIDS, and potentially devastating outbreaks of previously eradicated afflictions such as Legionnaire’s Disease or Hepatitis C have created new public policy quandaries that pit the individual’s right to privacy against the public’s right to know and be warned of grave dangers.

Compelled Disclosure

A health care delivery system can be compelled under state law to disclose a patient’s medical records or other care concerns in a few discrete circumstances. First, it is worth noting, although it may seem obvious, that the patient has the absolute right to inspect his or her medical records. NRS 626.061. The patient may also designate another who is authorized to examine or even copy medical records. Typically, a patient pursuing a legal claim of malpractice will sign a general release and consent form authorizing an attorney or one chosen by the attorney to review or photocopy the patient’s record.

Although hospitals are extremely reticent to permit access to patient records without properly documenting the patient authorization, there have been instances in Nevada where the right to review medical records is unclear because the person paying for and directing the services is not the same person receiving the services. In Cleghorn v. Hess, the Supreme Court of Nevada held that the medical records access statute absolutely guarantees that employees who undergo psychological testing as a condition of employment are “patients” and entitled to obtain copies of their test results. Cleghorn v. Hess, 109 Nev. 544, 549 (1993). In that case, an employee at the Nevada Nuclear Weapons Test Site facility was required to undergo psychological testing as part of a medical and psychological suitability testing program for the U.S. Department of Energy Human Reliability Personnel Assurance Program. When the employee requested copies of his record, the psychologist refused claiming that the testing was not medical care, that the tests were not rendered for the employee’s benefit because his employer had paid for them, and that releasing the results would compromise national security. In spite of these seemingly persuasive arguments, the Court felt that the patient’s right to review his own records superseded even the interests of national security.

Under the same statute that guarantees a patient access to their own medical records, the Nevada Attorney General’s office is also authorized to review patient medical records under certain circumstances such as when investigating instances of Medicaid fraud. Similarly, the statute authorizes the Nevada Board of licensure for any medical profession to review medical records during any investigation authorized by law. However, these entities are obligated to preserve the patient’s privacy and ensure that disclosure does not exceed that which is necessary for the agency’s lawful purpose.

Under other circumstances, the nurse may be obligated to report to state or federal agencies medical-care related information where public policy mandates disclosure. For example, if a gunshot wound victim presents at the emergency room, the hospital staff are required to report the incident to local law enforcement. Also, if the staff suspects that injuries observed on a child or elderly patient are the product of abuse or battery, the staff must report the observations to the state welfare agency.

Abuse. Under Nevada law, any health care professional is required to report instances of abuse or suspected abuse upon a child or an elderly person. NRS 432B.220 and NRS 200.5093. To encourage health care providers to come forward with knowledge or information concerning abuse of children or the elderly, the legislature enacted laws that shield any individual from civil or criminal liability who makes a report in good faith. NRS 200.5096. Nevertheless, this immunity is not absolute and nurses should not overstate their duty to report: there must be credible indications that would cause a similarly-situated reasonable professional to make a report in good faith. On the other hand, failure to make a report when a reasonable professional in the same circumstances would, may result in criminal punishment for misdemeanor dereliction of duty. NRS 432B.240.

With this caveat of caution, it is important that the nurse making a report of abuse documents the observations and circumstances which indicate abuse of a child, or abuse or isolation of an elderly person. The record should reflect clearly the date and time of observation(s) and should provide a detailed narrative of specific facts and observations upon which suspicions are founded.

The report must be made to an agency which provides protective services or to a law enforcement agency immediately, but in no event later than twenty-four hours after there is reason to believe abuse or neglect has occurred. It can be made orally, by telephone, or in writing. Before making any report, the nurse should consult with a supervisor and an administrator to notify the institution that a report is to be made and to permit the institution to take responsibility for making the report.

Communicable Diseases. The Nevada Administrative Code has adopted by reference the universal precautions established by the U.S. Centers for Disease Control headquartered in Atlanta and various procedures and protocol published by the Center advising methodology for the control of communicable disease. NAC 441A.200. These provisions require that a health care delivery system notify the Nevada Department of Health upon confirmation of a diagnosis of any dangerous communicable disease, including rabies. Moreover, the health care provider has a duty to report even suspected cases of communicable disease. Any person who reasonably suspects or knows that another person has a communicable disease and knows that the other person is not receiving health care services from a health care provider, must report that person to the health department. NAC 441A.255.

Nevada law clearly requires that a health care provider who knows of, or provides service to, a person who has or is suspected of having a communicable disease, report that fact to the health department. NRS 441A.150; NAC 441A.230; NAC 441A.255. The report may be made orally, by telephone, or in writing and must include the communicable disease or suspected communicable disease; the name, address, or telephone number of the person known or suspected to have a communicable disease; and the name, address, and telephone number of the person making the report. NAC 441A.255. Certain diseases call for more imperative action. Any known case of active tuberculosis must be reported within twenty-four hours to the health department. NAC 441A.350. In other cases, if a person has a certain communicable disease and fails to seek or follow through on a course of treatment, the health care provider must report that fact to the health department. The Nevada Administrative Code explicitly set out this duty in cases of sexually transmitted diseases such as Chancroid, Chlamydia, Gonorrhea, Granuloma Inguinale, Lymphogranuloma Venereum, and Syphilis. NAC 441A.485-441A.695.

When a report is made to the health department under legal duty established by the Nevada legislature, the nurse should take care to document the circumstances of the patient’s care including observations, assessments, diagnoses, and its confirmation by a physician. Reports to the health department may be made through established channels, such as through an appropriate hospital administrative cell, and the nurse concerned about legal responsibility for making a report should follow appropriate internal protocol.

There is no legal requirement in Nevada that the patient be informed by a care provider that a report of communicable disease is to be made to the health department about the patient’s case. However, consistent with the patient’s Bill of Rights and as an advocate for the patient’s care, there is an ethical duty of candor to inform the patient of the nurse’s legal duty. In cases where a report of suspected communicable disease, or suspected failure to seek or follow treatment is to be made, informing the patient that such a report will be made can encourage the patient to responsibly seek out or follow a regimen of treatment.

Conclusion

Generating documentation of very sensitive and personal matters in a patient’s medical records creates a corresponding responsibility for the nurse to protect that patient’s constitutional right to privacy. However, there are some instances where public policy concerns override or at least limit the patient’s right to privacy. In these cases, concern over public health, or to prevent abusive or criminal conduct, commands that the nurse make reports to the appropriate health or law enforcement agency.

One thing is very clear. The patient has an absolute right to their own medical records. Even then, our technological advancements make transmission of records more risky. Any time documents are sent in the mail or electronically, there should be a clear provision set out at the beginning of the document stating that these matters are the private confidential medical records and the sole property of the patient and hospital.

Moreover, professionalism in nursing dictates that any discussion or other transmission of sensitive patient information should be conducted with the utmost care and discretion. The nurse should be aware that the health service delivery environment is frightening, intimidating, and alien to most people. Further, inconsiderate regard for privacy and confidentiality can greatly diminish the patient’s experience in that environment.