Jackson Kelly PLLC

Health Law Monitor

Documenting the Standard of Care during a Pandemic

March 11, 2020

By: Laurie K. Miller

The Coronavirus (COVID-19) is spreading through the United States, and the CDC is forecasting continued infection. More and more people could develop symptoms and arrive at hospitals for help. So, what do we know about the standard of care for healthcare providers in these scenarios?

In most states, standard of care is defined by statute and is typically described as that level of care that a reasonable healthcare provider would have offered when faced with the same or similar circumstances.  But, with the guidance and trends of this virus changing literally daily, how can a healthcare provider prove that such a standard was met on any given day for any particular patient? As with many medical malpractice cases, the answers may be found in the documentation within individual patient records.

If the healthcare facility has an infectious disease algorithm, flowsheet, or checklist for suspected COVID-19 cases, save them.  Consider putting current copies of those documents in the patient medical record as well.  Every time the algorithms, flowsheets, checklists, and order sets change, save those changes too.  As the guidance changes for handling patients suspected to have the disease changes, there will be a record of how the healthcare provider and/or the facility evolved with the guidance.  It will be difficult looking back on this crisis and not have a desire to Monday morning quarterback it.  Be vigilant and document the history of the development of the standard of care in real-time.

Other parts of the documentation should also be carefully considered including all decisions on both treatments considered and rejected.  If there is no documentation on differential diagnoses or choosing one plan of care over another (particularly a decision on using or rejecting isolation precautions for patients), it may be hard to look at the patient’s chart several years from now and know what was occurring with the patient at the time.  Discharge instructions should also be carefully documented with each patient signing their discharge instructions and acknowledging that they understand them.  If a patient does not want a recommended treatment or resists efforts of isolation, make sure that the patient completes the necessary paperwork concerning discharge against medical advice.  Finally, if there is signage posted around the healthcare facility advising visitors to wash hands or wear masks, advising visitors in the emergency room that they need to use hand sanitizer or cover their mouth with their elbow when they cough, if there are screening questionnaires used that ask about travel, all of those materials should be saved in an effort to document the facility’s efforts to contain the spread of the virus and meet the standard of care as it evolves.

There are many ways in which healthcare providers can document the standard of care in real-time and their efforts to meet it.  These are but a few suggestions.  There are also ways in which to build this kind of charting into the medical record.  While saving documentation may be the last thing on the mind of a healthcare provider today, it may be crucial to defending a healthcare provider’s life-saving actions tomorrow.  Protect patients today.  Preserve documentation to protect yourself tomorrow.


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