One of the most frustrating, but inevitable, parts of each nursing home case is obtaining and cataloguing a complete set of the nursing home records. First you have the stonewalling: “HIPAA prohibits us from releasing the record to anyone.” “We can only release the record to Mr. _____ (the resident).” When you finally do obtain some part of the record, it is obviously not complete.
You must ask for all care and treatment records of the resident, including incident reports and any “committee” records, which are often kept separate from the chart or record. My requests state that we want “every piece of paper” which has anything to do with the resident.
After several attempts to obtain a complete, certified copy, your task is to review the record, organize and index the record, and prepare a timeline. Although shortcuts are possible in the review of the case, once the matter is accepted and proceeding, organization is imperative. The record is usually the only way to determine what really happened to your client. (Any witnesses who are willing to testify and have valuable memories are an unusual and welcome surprise).
One always hopes to find obvious fraud in the record. While not necessarily causal of harm, even irrelevant fraud or misrepresentation is a “sexy” fact to be used in negotiation. It will also help influence the jury (or an adjuster) when weighing whether other, less-obvious but causally-related record discrepancies are unintentional errors or fraud.
What to Look for (the Easy Ones)
1. Charting done when the patient is not at the facility, or after death. This, of course, is not causal of harm in itself. However, it can usually be helpful. For example, in a malnutrition case where the feeding records show that your client consistently consumed 75% of her meal, your arguments that the records are not accurate become much stronger if the records show that she continued to consume 75% of her meals for 2 days after she died. Or, if she ate her meals at the nursing home while she was at the hospital for x-rays. Check all “timed” charts against a chart of when your client was not present. These include medication sheets, food intake, turning schedules, pressure sore charting, and any others.
2. The med sheet does not match the physician’s orders. This can be a valuable find because the duty of the nursing home is to carry out the doctor’s orders.
3. Dramatic changes in size or status of pressure sores. This happens when the charts are filled in after the fact, or when different people fill in different portions of the chart without comparing their entries with others. You may see a sore which has been charted as stable for several days suddenly double in size. An even better find is when an independent source (hospital or social worker) charts a pressure sore in a startlingly different manner than the nursing home.
4. Non-defendants describe condition much differently than the nursing home defendant. An obvious example of this is when an ER admission report is obviously at odds with the concurrent nursing home records. When the hospital identifies several issues that the nursing home should have identified and treated but obviously did not, this is helpful. Frequently previously-unidentified conditions discovered at a hospital include malnutrition, dehydration, anemia, infections and pneumonia.
5. Compare your copy of the chart with the original. There is no substitute for seeing and reviewing the actual original copy of the chart. There will almost always be documents in the original that you were not sent. You can request a color copy, which is valuable, but you must see the original chart if there are any questions regarding the charting.
6. Do you have all of the records? The more different records you have of an event, the more likely you are to find discrepancies. For example, if a fall occurs, you want to see the nurses’ note, the incident report, the physical therapist’s record and any others which discuss the fall. To be sure you have all of the records, try these methods:
a. Review policies, procedures and training manuals of the nursing home to see what documentation is required. Do you have it?
b. Depose the DON , RNs, CNAs and other caregivers to see what documentation they were trained to provide.
c. Depose the records custodian early in the case to compare the entire record to your copy.
More Serious Efforts
1. Retain an expert. Besides hiring nursing experts to review the chart, it is sometimes useful to retain an expert to examine handwriting or to determine whether something was added later. This is helpful where additions are “squeezed” in, or where an entire page may have been “rewritten.”
2. Conduct discovery depositions. When you suspect that charting was done all at once, (several days or weeks of feeding records filled in at one time, for example), depositions of key employees are helpful. Determining the order to conduct these depositions is important.
3. Invest in a good investigator. The best resources in a fraud case are often prior employees. They sometimes tell stories of corporate pressure to keep records clean, to avoid litigation or of “classes” in how to chart.
4. Grill the writer of a late entry. All late entries are to be noted as such, but often are not. These are often times self-serving. Why was the entry made? What happened to the original entry? Who had input into the decision to make a late entry?