How Evidence Gathering Helps Defend Your Healthcare Organization from Claims

Evidence gathered from your healthcare organization’s immediate investigation can become the foundation for your legal defense when it comes to claims.

“No matter how fast we jump into investigating or looking into a claim, there are some key pieces of evidence that we can't recreate, that our members need to get right there on the scene when it happens,” says Jamie Lamb, Director of Claims Operations at LHA Trust Funds.

“That's why it's really important to educate and help guide them along in the process so that we're getting that capturable evidence that will be gone if we don't catch it quickly enough.”

Discover the best way to write occurrence reports, why occurrence reports are important regardless of incident severity, and how to secure definitive photo and video evidence during your initial investigation.

The Changing Role of Occurrence Reports

For many years, occurrence reports — also referred to as incident reports — were considered internal documents and were not produced in court. Now, more judges are ordering occurrence reports to be produced in discovery.

As a result, healthcare organizations should train staff to write occurrence reports in anticipation of litigation — and that can be a challenge in larger organizations.

“Your incident report is just the basic facts of what happened,” Lamb says. “And if you have a facility or a clinic where anyone can write an incident report, then you have a lot of people who need to learn how they should write an answer for specific questions.”

Writing Occurrence Reports

A good rule for all staff members who complete occurrence reports is that they write it as if it will be read by a judge or jury.

The best practice for how to write an occurrence report is to remember the three P’s — be polite, patient, and professional.

An occurrence report is a clear brief statement of facts regarding the sequence of events that led to the incident, the incident itself, and its direct aftermath. It should include:

• Information relevant to the incident
• Clear, professional language
• Any quotes from the involved party, the injured party, the claimant, or any affected visitors
• No personal opinions or assumptions
• No narration or defense of any parties involved.

“If I have to produce an incident report, and it has unprofessional or judgmental language or assumptions, it makes things more difficult,” Lamb says. “And it's hard to write an incident report without making assumptions. It’s about not making those conclusionary observations — just observing and collecting the facts.”

It’s also important to complete occurrence reports even if the incident didn’t cause an individual to seek medical treatment right away or cause injury at all. Louisiana gives plaintiffs one year to pursue a claim in almost any circumstance.

If, for example, a person slips, trips, and falls in your facility but refuses medical treatment at the time, the incident must be documented with the full names of the person who fell, any companions, and any other witnesses. Any video footage of the incident should be secured, and the fall site investigated immediately.

In that example, if an incident report was not completed, no trigger exists to let risk management or facility administration know the situation even occurred. And if a claim was brought against the facility regarding the fall six months later, the opportunity to start the investigation process and preserve evidence is lost.

Securing Video and Photo Evidence

Video evidence can help investigators quickly understand what happened during an event. However, preserving that video evidence can be problematic.

Preserving two hours before an event, the event itself, and two hours afterward is the ideal amount of video to preserve for evidence purposes. But some investigations can require more video footage depending on the situation. Ultimately, preserving video evidence means knowing the full scope of what is needed and staying in communication with your LHA Trust Funds claims consultant.

“Video preservation is huge. If they don't go in and save it, then I cannot recreate it,” Lamb says. “And almost every facility has a tape over a loop. So, if they don't tell us early on about the event, then the video may not be preserved.”

Photographs can also be vital pieces of evidence when secured immediately after an incident has occurred. Perspective is key and evidence photographs are intended to preserve the condition of the environment as it is at the time the event occurred. That’s because structures, parking lots, pavement, and landscaping change over time due to weather, construction, and other factors.

Measurable photographs are very useful in litigation because they can show the length, height, and depth of, for example, an irregularity in the ground, a pothole, or a crack in the sidewalk. An ID badge, coins, or even a dollar bill can be used as reference points for length, height, and depth.

“Often events happen where there are no cameras and photographs can make a difference,” Lamb says. “Scenes change. Areas change. Photos that provide perspective have a huge impact on perceptions at trial.”

Why Your Immediate Investigation Matters

While methods of conducting workplace investigations may change depending on the type of incident, any evidence gathering as the result of the investigation can make or break a case once it goes to court.

“The people writing incident reports in some organizations can be nurses, environmental services staff, registration personnel, or security. What they know about it, what they say, and what they observe is so important to the overall outcome of a claim,” Lamb says. “What they do matters — it's so important and it's so helpful. I've seen too many cases go sideways because one little piece of the puzzle wasn't there. We want to help fill in the gaps and help keep this information at the front of their minds when an incident occurs.”

Want more of Lamb’s advice? Register for her upcoming online event “Conducting Workplace Investigations & Writing Occurrence Reports” on Wednesday, June 14 at 10 am.