“Noncompliant.” How a lawyer reads the label in a chart

On the stand · 4 of 12

Noncompliant.

With what? It labels the patient without naming the care offered, the decision, or the reason behind it.

What they ask about it

A deposition of the facility's director, as the court summarizes it
She agreed, however, that if Paul was noncompliant with bathing, that was something she would expect to see in the nursing notes.
Source: Manter v. CPF Senior Living - Northgate Park L.L.C., 2024-Ohio-1385 (Ohio Ct. App., 1st Dist.), 2024
A plaintiff malpractice firm, on what the label can hide
In other situations, there’s another side to the story. For example, it’s not noncompliance when a patient won’t participate with physical therapy because her baseline pain is abnormal and excruciating. Instead, that’s an issue that needs to be evaluated and treated by a physician.
Source: Painter Law Firm (plaintiff malpractice attorneys, Houston), Robert Painter, "What does patient noncompliance mean?" (Aug 27, 2019), 2019
Experts reviewing a nurse practitioner's chart (NSO case study)
However, the experts were concerned that the NP had not documented discussions around the patient’s risk of cancer related to HPV, the risks of being noncompliant with medical treatment, or the efforts to follow up with the patient when she missed appointments.
Source: NSO (Nurses Service Organization), "Nurse Practitioner Case Study: Failure to counsel patient on risks of noncompliance"
A malpractice insurer's case study: the defense won (ProAssurance)
The podiatrist clearly documented at each follow up visit that the patient was not wearing her boot or using crutches as instructed. He even documented his repeated urging and review of complications though the patient later denied these conversations.
Source: ProAssurance Risk Management, "Contemporaneous Documentation Leads to Win in Court" (December 2021), 2021

It happened in court

Manter v. CPF Senior Living - Northgate Park L.L.C.

Ohio Court of Appeals, First District · 2024

Charting was done only when something was abnormal, so nothing showed what the resident refused, what was offered or who was told. The court found real factual disputes for trial.

Stephanie Watkins, former wellness director at Northgate, testified that charting for residents was typically done only when something was abnormal. She also agreed that bathing records should have been included when charting for a resident.

Write instead

0830: Declined shower, reporting fatigue. Offered seated wash at bedside. Accepted assistance washing face and upper body; declined remaining hygiene care at this time. Plan to reoffer after rest.

Words that get read back to you in a deposition

Already charted it this way?

Do not change the original entry. Not for any reason, and not after you hear there is a claim.
Never alter a patient’s record - that is a criminal offense
Source: NSO: Do's and Don'ts of Documentation
Every change shows. The record keeps the time of each entry and each deletion.
Correct your charting errors in accordance with your organization’s policies and procedures, ensuring that it is clearly marked as a late entry. Remember: electronic healthcare records automatically date and time each entry and identify electronic deletions, so any attempt to alter the patient healthcare information record is discoverable.
Source: NSO, Defensive Documentation: Steps Nurses Can Take to Improve Their Charting and Reduce Their Liability
Add a late entry, the way your policy says. Mark it as late. Write only what you actually remember.
If something needs to be added to documentation, always chart that information with a notation that it is a late entry and include the time and date
Source: NSO: Do's and Don'ts of Documentation
Use the time you are writing it. Name the time of the event inside the entry; the entry itself carries today's time.
Enter the current date and time – do not attempt to give the appearance that the entry was made on a previous date or an earlier time.
Source: ACDIS Q&A: Policies for late entry documentation
Not to protect yourself. A note added after an incident to cover the gap reads as guilt.
Don’t chart defensively after an incident has occurred. This is a red flag to lawyers later on. Defensive charting is not necessarily going to stand up in court as actual evidence of negligence, but it does telegraph the message that you believe you were at fault, and that’s the red flag the lawyers will be looking for.
Source: The Health Law Firm, 25 Legal Dos and Don'ts of Nursing Documentation
Got a subpoena or a deposition notice? Call your liability insurer and your risk manager before anything else.
The first action nursing professionals should take is to inform their professional liability insurance provider and employer’s risk manager or legal counsel of the deposition notice.
Source: CNA and NSO: Nurse Spotlight, Preparing for a Deposition
The hospital's lawyer is not your lawyer. They represent your employer.
Keep in mind that this attorney is not your attorney, but is your employer’s attorney; therefore, you may wish to retain a board certified healthcare attorney or a litigation attorney to be “on your side” for the deposition.
Source: The Health Law Firm: Preparing for a deposition, for nurses
At the deposition, do not guess. Answer what you saw and what you know. Not remembering is an answer.
7. If you do not know the answer to a question, do not guess. Say that you do not know the answer. 8. If you do not remember something, say so.
Source: CNA and NSO: Nurse Spotlight, Preparing for a Deposition
You can describe your routine. What you always do is evidence too, but it is weaker than the note.
You can speak about your custom and practice in general at deposition, but there is no substitute for a well-written note and initialed treatment boxes.
Source: I Advance Senior Care, Nursing depositions: Duty or disaster?

Not legal advice. Your facility policy, your state and your own attorney are what bind you. Every question and every quote here links to where it was published; read the source, not us. Written by a med-surg RN, ten years, day shift. Why there is no name on it.