What Nurses Need to Know About Statutes of Limitations

Do you remember the details of interactions with every patient you cared for 2 months ago? What about 1 year ago? The reality is nurses cannot rely on memory to recall details that could make the difference in successfully defending themselves against a lawsuit. After all, most of us can’t recall what we had for dinner 2 nights ago.

The statute of limitations refers to the maximum amount of time between when an incident took place and when legal action can occur. Medical malpractice lawsuits can occur months or years after you last cared for the patient.

Why statutes of limitations?

Statutes of limitations specify the amount of time between when an injury occurs and when the injured party can file a valid cause of action in court. The intent of limiting this time frame is to promote fairness. Memories fade and witnesses can become incapacitated, making it difficult for the accused person to mount a reasonable defense.¹

Statutes of limitations vary by state and the nature of the offense, and they can be quite specific. For example, in Texas the statute of limitations for filing a medical malpractice lawsuit is generally 2 years from the date of the injury, or if the injury occurred as part of an ongoing course of treatment, 2 years from when the treatment is concluded.^2,3 However, in California, it is 3 years or 1 year from the date the injured party should have known about the injury, whichever is the earlier date.^2,4

Documentation provides protection

As a nurse, it’s likely you realize the importance of documenting what treatment you have provided, but it’s easy to forget–or not document completely–when you’re caught up in a busy workday. However, not recording key information makes it more difficult for an attorney to defend you in the event of legal action.

Protect yourself by documenting patient interactions, whether they occur in person, on the phone, or electronically. Use the advice in Documentation tips, (see sidebar), as a starting point to evaluate whether your documentation meets professional standards and legal requirements and make improvements to your practice as needed.

Retaining records

Because of statutes of limitations, you could be named in a lawsuit long after your last interaction with a patient. That’s why it’s important to retain records based on state and federal laws and regulations.

While state laws generally govern how long medical records are to be retained, some experts recommend keeping records for as long as 10 years. In the case of minors, experts recommend keeping records until the child reaches adulthood plus the maximum the length of time your state defines as the statute of limitations. Furthermore, though the Health Insurance Portability and Accountability Act (HIPAA) does not include medical record retention requirements, it requires that covered entities apply administrative, technical, and physical safeguards to protect the privacy and security of protected health information for whatever period they maintain such information.⁵

You can find information about state and federal requirements related to retention of medical records at www.healthinfolaw.org/topics/60.⁶

Shield your nursing practice

Statutes of limitations provide some protection against lawsuits years after you see a patient, but they also provide ample opportunity for lawsuits by individuals who may no longer be a patient. Help protect yourself from liability by documenting completely and retaining records that can provide evidence of your care.

Documentation Tips^7,8

Follow these tips to help ensure that complete documentation—not your memory—protects you in the event of legal action.

• Make sure your documentation reflects the nursing process and your professional capabilities.
• Chart promptly. If you wait until the end of your shift, you could forget to include important information.
• Chart in chronological order, specify exact times, and do not chart ahead of time.
• Keep comments factual, and objective to avoid any perception of bias.
• Write clearly and concisely. Avoid using imprecise descriptions, such as “some”, “a little”, or “a large amount.”
• Document all communications: face-to-face, electronic, and by telephone.
• Don't chart a symptom, such as "c/o pain," without also charting what you did about it.
• Do not blindly copy and paste standard entries or entries from the patient’s prior visits or between charts, and do not copy and paste another’s notes without proper attribution.
• If you make an error when documenting, make the correction, noting the date and time of the correction.
• Adhere to documentation requirements in states where you practice, your organization’s policies, and professional standards. If there’s a conflict, use the most rigorous requirement.

References

1. Spero SJ, Cohen PL. Boundary violations and malpractice litigation. Psychiatr Times. 2008;25(4). www.psychiatrictimes.com/articles/boundary-violations-and-malpractice-litigation. Published April 1, 2008.

2. Larson, Aaron. Statute of limitations by state for civil cases. ExpertLaw website.  https://www.expertlaw.com/library/limitations_by_state/index.html. Published November 6, 2017.

3. Texas Civil Practice and Remedies Code § 74.251. https://statutes.capitol.texas.gov/Docs/CP/htm/CP.74.htm.

4. California Civil Procedure Code § 340.5. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=340.5

5. 45 CFR 164.530(c)

6. Health Information & the Law Project. Medical Records Collection, Retention, and Access. The George Washington University Milken Institute School of Public Health & Robert Wood Johnson Foundation. http://www.healthinfolaw.org/topics/60.

7. Nurses Service Organization. Do’s and don’ts of documentation. https://www.nso.com/Learning/Artifacts/Articles/Do-s-and-don-ts-of-documentation?refID=iiWLTNPi.

8. Nurses Service Organization. Defensive documentation: Learn how good charting can protect you from liability. https://www.nso.com/Learning/Artifacts/Articles/Defensive-documentation-learn-how-good-charting-c?refID=iiWLTNPi.

Jennifer Flynn, CPHRM, Risk Manager, Nurses Service Organization, Healthcare Division, Aon Affinity, Philadelphia. Phone: (215) 773-4513. Email: Jennifer.Flynn@aon.com.

This risk management information was provided by Nurses Service Organization (NSO), the nation's largest provider of nurses’ professional liability insurance coverage for more than 550,000 nurses since 1976. The Association for Radiologic & Imaging Nursing (ARIN) endorses the individual professional liability insurance policy administered through NSO and underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. Reproduction without permission of the publisher is prohibited. For questions, send an email to service@nso.com, call (800) 247-1500, or visit www.nso.com.