NEW YORK NURSE: December 2010
Q.: When does nursing documentation become part of discovery in a legal proceeding?
A.: Documentation in any setting, whether formal or informal, completed as part of regular business, becomes discoverable if litigation ensues. As staff, we often keep notes, dairies or journals on the patients we care for, as part of our report for the day, or as reflections of an unusual event that occurred during a shift. While most staff are acutely aware of the need for confidentiality in these notations, notes that we believe are for our eyes only are not confidential if requested by a plaintiff’s attorney. If the plaintiff’s attorney discovers the notes, diary or journal, they have the right to ask for it, and can bring the material to the court’s attention if they feel that it will benefit their client. As staff, we must be mindful of this; therefore, it is recommended that notes, outside the patient record, not be maintained.
Another area that is impacted is the faculty role in clinical rotation. Many schools of nursing ask faculty to keep “anecdotal notes” on their students related to performance for evaluation purposes. NYSNA sought the advice of an insurance company on this matter and they indicated that some “categories of documents may be protected,” however, anecdotal notes that faculty keep on their students, particularly for clinical situations, should be kept in the student’s file. As with any policy and procedure, this practice should be clarified with the chair or program director of the school of nursing. Anecdotal notes, regarding student performance, according to the insurance company, should never be placed in the facility’s patient record.
This is a sample of the questions NYSNA’s experts answer each day. The advice given is specific for the situation described and may not be applicable generally. If you have questions about your own work setting, it is recommended that you contact your NYSNA nursing representative or the Education, Practice, and Research Program, 11 Cornell Road, Latham, New York 12110-1499 or call 800-724-NYRN, ext. 282.