Charting by exception - OR Nursing Law

AORN Journal,  Nov, 2003  by Ellen K. Murphy

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As an Increasing number of facilities move to a totally electronic medical record, even facilities that had not previously adopted a system of charting by exception (CBE) are considering doing so. Although most nurses' initial discomforts with CBE may have been settled, enough questions remain to make a comprehensive look at the legality of CBE useful.

Charting by exception gained popularity in the 1980s as a mechanism to reduce charting time and length and to make abnormal data more obvious. It requires documentation only of abnormal data compared to a system that includes all nursing actions and outcomes in narrative progress notes or flow sheets. In the 1990s, CBE gained momentum as a mechanism to promote more efficient use of nurses' time. Many nurses, particularly those who were educated to follow the "not charted, not done" mantra of previous systems, were ambivalent about or opposed to its acceptance, and many times, they questioned its legality.

Charting by exception is premised on an assumption that the patient has manifested a normal response to all interventions unless an abnormal response is charted. Integral to this assumption is the presumption that the nurse did, in fact, assess the patient and made the observation or judgment that the response was normal. It is this presumption that runs counter to the "not charted, not done" adage and may lie at the root of nurses' discomfort with accepting a CBE system.

Most states' nurse practice acts make some reference to documentation as part of the practice of nursing. Many states' administrative rules include specific requirements about the content of the medical record. AORN's

"Recommended practices for documentation of perioperative nursing care," require that the record reflect the plan of care. (1) All of these requirements can be met with a properly designed and implemented CBE system that is tailored to include any relevant state or facility requirement.

Many states have statutes or administrative rules about some specific content to be required in medical records, and these can and must be tailored into any CBE system. Generally, however, states regard medical records as facilities' business records and accord wide latitude to facilities in determining how to document and what to include in medical records.

Many nurses, however, retain legitimate concern about how credible a jury might find a document in which charting is done automatically by some means or that does not contain explicit reference that every assessment was conducted. Only one appellate case could be located that provides an explicit discussion of CBE and its legal adequacy in a malpractice cause of action. The incident occurred in Puerto Rico in the mid 1980s.

The plaintiff in Lama v Borras, 16 F3d 473 (1st Cir [PR 1994]) had undergone two surgical procedures for a herniated disk. The second procedure was performed on May 15, 1986, and neither preoperative nor postoperative antibiotics were ordered for the patient. The facility used a CBE system, and on May 17, a nurse's note indicated that the dressing over the wound was "very bloody." On May 18, the record indicated the patient was experiencing incisional pain. On May 19, the dressing was "soiled again." No other qualitative observations were recorded during these three days. Notably absent was any description of the wound. Not withstanding the CBE policy, routine quantitative data such as temperature were recorded.

On the night of May 20, the patient began to experience severe pain in his back and passed the night screaming in pain. By May 21, the patient also had an elevated temperature, and the defendant surgeon initiated antibiotic treatment. The patient's infection required that he undergo antibiotic treatment and several additional months of hospitalization.

The patient sued the surgeon, alleging negligence in several areas that will not be discussed here. More importantly for this discussion, the patient sued the hospital for failure to prepare, use, and monitor proper medical records and failure to provide proper hygiene at the hospital premises.

The district court held and the first federal circuit court of appeals affirmed that

   "... it was entirely possible
   for the jury to conclude
   that the particular
   way in which the medical
   and nursing records were
   kept constituted evidence
   of carelessness in monitoring
   the patient after the
   second operation. Perhaps
   infection would have been
   reported and documented
   earlier. Perhaps the hospital
   teas negligent in not
   dealing appropriately with
   wound inspection and
   cleaning, [and] bandage
   changing ..." (Id at 477).

If the reader stopped here, it would be easy to conclude that these courts were saying CBE is a careless and not legally credible system of recording nursing care. Later in the case report, however, the court explained its rationale for finding as it did, and a different conclusion could be reached.

In its discussion of its decision, the court noted that the jury could have inferred that the nurse did not record information to recognize the diagnosis of infection, such as changing characteristics of the surgical wound and the patient's complaints of postoperative pain. Presumably, reddened, raised, weeping, or dehiscing suture lines would be exceptions that should have been charted.