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Trending Topics in Nursing Depositions

As a medical malpractice defense attorney, I have attended many nursing depositions over the years.   A deposition is a question and answer session where the opposing attorney gets to ask the nurse-witness a wide variety of questions about the care that he or she gave to a patient. As I sit through these depositions, I have noticed that nurses are being questioned about the same issues over and over again. The purpose of this article is to inform nurses about these trends so that they are better able to identify these issues and modify their behavior to best protect themselves from a lawsuit being filed against them over the medical care that they provided to a patient.

Patient Advocacy

During a deposition, a nurse is oftentimes asked by the plaintiff’s attorney whether she believes that she acted as the best advocate she could be for a patient during his or her hospitalization. What exactly does being a patient advocate mean? The general public believes that nurses act as the “go-between” between the patient and the doctor. After all, most patients have significantly more interaction with their nurse during a hospitalization than with their doctor, who sometimes only round on them once per day. Asking yourself whether you are being an effective patient advocate forces you to ponder whether your patient is getting the exact medical care that he needs from you during an admission:

  • Is the patient receiving physician evaluations when he needs them?
  • Did you perform timely interventions when there was an acute change in patient status?
  • Were all of her complaints addressed in a timely manner?
  • Was he medicated appropriately and safely?
  • Where are all of the patient’s care needs addressed without significant delay?
  • Did you call the physician if needed? What was the doctor’s response and was it sufficient?
  • Were there any times when you should have asked the doctor to come into the hospital to see the patient in person?

Again, the patient relies on their nurse to be their connection with the doctor. A nurse needs to use her critical thinking skills to determine whether a patient needs more care than she is getting, and to act within his nursing powers.

Patient Teaching and Education

A portion of my medical malpractice cases involve allegations that there was a verbal miscommunication between a nurse and a patient during the discharge process which lead to patient harm. This is because a good portion of nursing practice involves teaching patients about a number of complex medical topics. For example, when a patient is discharged from the hospital, oftentimes it is the nurse’s responsibility to make sure that the patient has received all of his discharge paperwork and his prescription pad sheets. It may also be the nurse’s responsibility to instruct the patient on what follow-up testing she needs to schedule, such as CTs, MRIs, or blood work.   Also, the nurse may be responsible at discharge to remind the patient when she is to make a follow-up appointment with his treating physician.   And then, after all of this is accomplished, a nurse needs to ask himself whether the patient actually understood what he told him? After all, improper or deficient patient-teaching practices may expose a nurse to potential liability in a lawsuit.   Here is a short list of things to keep in mind to make patient teaching efforts more efficient and meaningful:

  • Is the patient hard of hearing? Do you need to speak louder?
  • If the patient is anxious or excited to get out of the hospital, they may not pay attention to what you are saying. So try to bring them back to reality and remind them that they need to pay attention to you now, so that you can get them out of the hospital soon.
  • Ask the patient to repeat instructions back so that you can be certain that they heard you and understand you.
  • Do you need to use simplified language and less medical jargon for certain patients?
  • Does the patient have memory problems due to old age, disease, etc.? Are they going to remember what you told them once they get home?
  • Would this patient benefit from receiving written or typed instructions, rather than just verbal instructions, or both?
  • Does this patient speak and understand English? Do you have access to a translator if needed?
  • Is this a patient who would benefit from diagrams and illustrations rather than verbal or written instructions due to literacy or education problems?
  • With the patient’s permission, are you able to call a husband/wife/or adult child and relay medical care instructions to them too, as well as the patient?

It is also important to then document in the medical chart what type of teaching you undertook with the patient. This may seem time consuming, but it is necessary. After all, it will be your word versus the patient’s word should a future lawsuit revolve around a miscommunication at the time of discharge.

Incomplete or Deficient Charting Practices

There is an old adage — If you didn’t chart it, it didn’t happen. It basically stands for the proposition that documentation in the world of nursing means everything when it comes to proving in a court of law what you did for a patient, and when you did it. Nursing actions that need to be charted on a routine and consistent basis are patient teaching efforts, patient assessments, physical exams, patient complaints, communications with doctors, family conversations or concerns, and any interventions or therapies completed by the nurse or others. It is understandable that a busy or hectic night on the floor, or a high patient census, can lead to lapses in charting practices or charting deficiencies. Actual patient care comes first and foremost, but I usually advise nurses that no matter how busy you are, document something in the chart about each of your patient interactions, even if it is brief or in shorthand. Of course, if you have more time, then you can write a more descriptive note. And sometimes a late note added to the chart, or an addendum to a previous note – is better than no note at all. In either instance, accurately charting your actions, no matter how brief your notation, sets you up to be much more credible and believable should someone later question what you did for a patient, and when.

Electronic Medical Records (EMR)

For better or worse, the United States healthcare system is presently transitioning to an all computer-based, electronic charting format. In a number of ways, this has been beneficial for both the healthcare providers and the patients. Many nurses can now type faster than they can write, presumably making documentation of patient encounters immediate and faster. Furthermore, with electronic records, all the notes are legible (since they are typed) and other healthcare providers can easily read them.

But the EMR system also has a downside and recent lawsuits have highlighted certain deficiencies in electronic nurse charting. EMRs usually have a pre-set list of windows or assessments that a nurse must perform, or click-through, during each and every patient interaction. Sometimes these pre-set assessments are redundant or don’t adequately allow the nurse to document the specific patient encounter at issue. But nurses need to ask themselves – Is there anything additional and important that I need to chart about this patient before I end my encounter? Did the drop down menus actually allow me to perform an adequate assessment of this patient? Would it be beneficial for me, the patient and the doctor if I were to add a brief descriptive note at this time, rather than to just rely on the pre-determined boxes?

Nurses must be able to use their critical thinking skills to determine whether choosing the computer option to add a narrative note, rather than being confined by the drop-down boxes, would make for a more useful documentation session? The take-away point is that nurses must use their critical thinking skills to determine whether a patient interaction is best documented by using the EMR’s pre-determined windows, or whether additional charting may be needed for unique or complex circumstances.


The above list is certainly not all-inclusive, but merely seeks to highlight at least four of the most common nursing care issues that are being questioned in the deposition setting recently. It should be every nurse’s goal to provide superior medical care to his or her patients. Hopefully, a candid analysis of these potential pitfalls above will help both nurses and patients to make more meaningful use of their interactions in a healthcare setting.

For a confidential analysis of your nursing care issues or protocols, or questions about TRC’s Healthcare practice area or nurse training and education, please contact Ashley L. Griffin, Esq. at (412) 316-8652 or [email protected], or David R. Johnson, Esq. at (412) 316-8662 or [email protected].

Important Notice: This information is intended for general guidance only, and should not be used as a substitute for specific legal advice. For specific legal advice applicable to your situation, you should consult an attorney of your choice. Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied. Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.