CHAPTER 12. Forensic Investigations in the Hospital
Mary K. Sullivan
This chapter examines the variety of forensic scenarios that occur in healthcare settings on a fairly frequent basis. The forensic roles and responsibilities of forensic nurses and other healthcare providers in the emergency department have gained recognition in recent years, but it is important to note that forensic scenarios are not isolated to this specialty area. There are many areas in a hospital environment in which nurses are in a prime position to identify and collect forensic evidence. Abused individuals may be encountered in hospital clinics or admitted to a nursing unit. During the initial interviews and clinical assessments, signs of abuse or neglect might be noted, such as burns, old scars, abrasions, contusions or musculoskeletal trauma. Elderly patients or individuals with disabilities who cannot protect themselves from aggressive caregivers or environmental neglect may have physical injuries or signs of neglect, such as poor hygiene, scabies, lice, decubitus ulcers and malnutrition. Ligature marks or handprints from restraining procedures might be noted. The operating rooms and special procedures areas are also environments where hidden injuries are often detected. Because pregnant patients are frequently targeted for physical abuse by husbands or boyfriends, nurses in the obstetrics and gynecological departments may detect abrasions, contusions, sprains, strains, or other musculoskeletal trauma. The onset of premature labor is commonly linked to actions of an abusing partner. If the mother or baby has adverse outcomes related to physical abuse, a forensic investigation will be required in order to prosecute the offender.
One goal of this chapter is to reiterate and emphasize the legal responsibilities of all nurses, in accordance with each state board of nursing, to report any suspicious or illegal activity occurring in the hospital, clinic, or any area where patient care in any form is delivered. With the many positive outcomes in healthcare delivery that are a result of the advances made in science and technology comes a negative side: those willing to exploit the weakness of any hospital system or vulnerable patient for personal or criminal gain. It is each nurse’s responsibility to become familiar with these weaknesses, at least in one’s own area of expertise, and to be able to recognize a forensic scenario if necessary and take appropriate action.
Some criminal activities can be broken down into what investigators label as “white collar” crimes, including computer fraud, medical identity theft, false entry and billing, and drug diversion practices involving the purchase of a discounted product and reselling for a higher price. Data storage within the hospital’s computer network and within medical devices can provide a detailed paper trail, which is vital for facilitating such investigations (see Chapter 9).
This chapter addresses criminal activity that occurs in healthcare settings and where forensic nurses can play a prominent role in identifying and collecting evidence as well as helping to resolve the problem. In some instances, obtaining forensic evidence is crucial before a case is even considered viable for investigation. It is absolutely vital that nursing personnel be able to recognize the telltale signs that any of the following may be occurring in a workplace environment: workplace violence among personnel , physical or sexual abuse by hospital personnel of vulnerable patients, illegal use of chemical or physical restraints, drug diversion by healthcare professionals for self-use or street distribution, and suspicious adverse patient events that are linked to negative outcomes or death. In addition, the chapter discusses various patient care scenarios that have medicolegal implications as well as other forensic information of which all healthcare personnel should be aware.
Regulatory and Legal Responsibilities of Hospital Nurses
The Joint Commission (TJC) has the laid the groundwork for the roles of forensic nurse providers and examiners within hospitals in its published scoring guidelines for patient care assessment. Additionally, The Joint Commission includes the review of organization’s activities in response to sentinel events in its accreditation process that opens the door for an important role to include the clinical forensic nurse specialist or investigator (Table 12-1).
| All personnel are trained in the use of these criteria for detecting abuse or neglect using objective assessments, not allegations alone, to identify cases for further management by the appropriate authorities. |
| Orientation and annual training programs include information and procedures useful in detecting forensic cases and referring them to appropriate individuals or services for treatment, required interventions, and follow-up. |
| Personnel are skilled in the appropriate techniques required for identification, collection, preservation, and safeguarding of evidentiary items outlined in the facility’s policy and procedure manual. |
| Patient standards of care include the recognition of forensic patients. |
| Policy and procedures outline management of sudden, unexpected deaths, sexual assault, and human abuse and neglect. |
| Personnel training folders incorporate required training and skills validation associated with the management of human abuse and neglect. |
| The facility has a clear plan for managing victims of sexual assault for all ages and both genders. |
| The facility has a dedicated space for examining forensic patients, which is equipped with locked units for storage of forensic evidence. |
| Forensic reference resources are available to providers who may need guidance in identifying signs and symptoms of human abuse and neglect. |
| The communication and reporting system within the facility is designed to maintain a high degree of patient privacy and discretion when forensic cases are being managed (short chain of reporting, dedicated phone lines, locked files, record security, release of information, etc.). |
| Mechanisms are in place to accomplish various types of photodocumentation and to manage these photos with a high level of security and flawless chain of custody. |
Joint Commission standard PC.01.02.09 stated: “The hospital has written criteria to identify those patients who may be victims of physical assault, sexual assault, sexual molestation, domestic abuse, or elder or child abuse and neglect.” (TJC, 2009). The intent of this standard acknowledges that victims of abuse or neglect arrive at our hospitals in many ways and are often not obvious to the casual observer. It is the responsibility, therefore, of each hospital to have objective criteria for identifying and assessing these patients throughout each department, and all providers are to be trained in the use of these criteria. When the assessment has been made, the provider makes the appropriate decision regarding treatment or referral. The criteria focus on observable evidence and not on allegation alone. The 2009 Joint Commission standards also affirm that hospital patients have “a right to be free from neglect, exploitation, and verbal, mental, physical and sexual abuse” (TJC, 2009, p. RI-10).
With the influence of forensic science on nursing assessments made by the clinical forensic nurse, it is more likely that a patient who is a victim of domestic abuse or neglect will be discovered. With this discovery, the appropriate assessments, documentation, and referrals will be made in a timely manner. If the assessment uncovers an injury or an admission of physical or sexual abuse in which an evidentiary examination is appropriate and accurate photography is required (i.e., a bite mark on the breast or genital area), the nurse who is conducting the assessment is the ideal candidate for identifying and setting into motion the events that will establish the appropriate treatment and referrals for this patient and, if necessary, activate the justice system.
Patients who are possible victims of alleged or suspected abuse or neglect have special needs relative to the assessment process in any clinical setting. Information and evidentiary materials may be collected during the initial screening and assessment phase that could be used in future actions as part of the legal process. The hospital has specific and unique responsibilities for safeguarding these materials. Therefore, hospitals must have appropriate policies and procedures for collecting, retaining, and safeguarding information and evidentiary materials. Further, the hospital policy must define these activities and specifies who is responsible for carrying them out (TJC, 2009).
The clinical forensic nurse is the ideal person to collect and preserve all evidentiary material in these clinical situations. This nurse is particularly knowledgeable about the safeguarding of evidence and chain-of-custody requirements that are paramount in all cases that involve legal action. Further, this nurse should be involved in writing all policies and procedures that define these activities within the hospital setting.
TJC defines a sentinel event as “an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof.” Serious injury specifically includes loss of limb or function. Such events are called “sentinel” because they signal the need for immediate investigation and response (TJC, 2009, p. SE-1). The Joint Commission emphasizes that not all sentinel events occur because of an error, and not all errors result in sentinel events.
Each hospital should establish mechanisms to identify, report, analyze, and prevent these events and are expected to identify and respond appropriately to all sentinel events. Response includes conducting a timely, thorough, and credible root cause analysis, implementing improvements to reduce risks, and monitoring the effectiveness of those improvements (TJC, 2009). Using the expertise of a clinical forensic nurse will help hospitals fulfill these standards.
Assid and Barber (1999) provided a complete checklist as to what any medical facility needs to do to ensure compliance with the TJC standards noted earlier. These include identified tools that may be used by personnel in clinics, the emergency department (ED), or inpatient, geriatric, or critical care units to identify abuse and neglect as established by the facility.
One forensic nursing subspecialty that is underrepresented and not yet formally recognized within the general hospital setting is that of the clinical forensic nurse. The nurse who fulfills this role must have a broad range of forensic knowledge and skills that may be applied to any patient care area within a healthcare facility. The clinical forensic nurse serves as a role model in clinical situations, increasing staff awareness of the potential for forensic implications in routine patient care, as well as working hand-in-hand with those charged with investigating patient complaints, suspicious patient events, unexpected death, questionable trends, and emergency/traumatic patient admissions. In addition to fulfilling another critical link between the clinical arena and the judicial system, the clinical forensic nurse is in a position to provide vital protection to victims of foul play when they are at their most vulnerable. The importance of evidence recognition, collection, and accurate documentation is a means to an end for giving patients who are victims of violence true holistic care. All of these elements are components of forensic nursing (McCracken, 1999).
The clinical forensic nurse is an essential part of any hospital team with the responsibility to evaluate and perform the root cause analyses (RCA) of adverse patient events. Adverse patient events range from those causing minimal concern to extremely serious action, but the majority of these events are not criminal in nature. Regardless, the precise identification, collection, and management of facts, data and medical evidence are critical, criminal or not. It is the duty of every healthcare provider to ensure a high level of quality patient care and the accurate delivery of such services. This means all healthcare providers must have some level of awareness of what constitutes medicolegal significance. In addition, our patients deserve a safe environment in which to receive healthcare, and healthcare providers deserve a safe place to practice.
In the clinical arena, forensic issues range from trauma and wound pattern evaluation to the proper evidence collection and management and even to the evaluation of the level of care provided and the timeliness of treatment (Anderson, 1998). The role of the clinical forensic nurse is critical in each area of patient care delivery in that the nurse is most often the first to see the patient, whether in triage, as a first responder in a code arrest, before the patient sees the primary care provider in clinic, or before the elderly patient is formally admitted into the nursing home care unit. The nurse is also the one most likely to observe interactions and nonverbal communication between the patient and significant other or parent/guardian.
Recognition of both overt and subclinical abuse and neglect, as well as situations where artificial means are used to create illnesses (Munchausen’s syndrome by proxy), is often obscured by the mindset of the healthcare provider, who is focused on “natural” illnesses (Anderson, 1998). The astute forensic nurse practicing in a clinical setting is able to maintain a professional balance between the nursing assessment of “natural” illness and the consideration of all possibilities, no matter how distasteful. Consideration of all angles and maintaining a heightened awareness does not mean the clinical forensic nurse focuses only on the next investigation; instead, this nurses takes a more thorough assessment of any given patient situation.
Winfrey (1999) said it best when describing “the suspiciousness factor” of a forensic nurse: “When an individual nurse masters forensic content and incorporates it into clinical practice, forensic science can also serve as a framework for honing intuition by increasing the suspiciousness factor” (Winfrey & Smith, 1999, p. 3). No individual enters a medical facility diagnosed as either a victim or an offender. It is the legal system that, after due process, affixes these labels. The nurse must at times help make that identification to activate the justice system. In some cases, it is only a hunch that compels the nurse to act. This hunch or intuition is the suspiciousness factor within the experienced clinician (Winfrey & Smith, 1999). The importance of the rapidity of nursing response inherent in intuition cannot be overlooked or dismissed, especially as it pertains to potential forensic cases. This intuition results in definitive action and timely nursing intervention (Brenner, Tanner, & Chesla, 1992).
Winfrey (1999) acknowledged that critics of this theory question the legitimacy of intuition in the doctrine of nursing. Easen and Wilcockson (1996) concluded that intuition involves the use of a sound, rational, relevant knowledge base in situations that, through experience, are so familiar that the person has learned how to recognize and act on appropriate patterns. Further, Paul and Heaslip (1995) stated that the thinking nursing practitioner has learned the art of “critically noticing,” and is on the alert for unusual circumstances or deviations from the norm.
Forensic science adds to the cognitive base that supports intuitive nurse actions. If suspiciousness is understood as part of intuition, the resulting actions and interventions are immediate and tailored to the unique features of the clinical situation. The forensically indoctrinated nurse is unique due to a realistic set of responses that assumes the justice system is an established part of the multidisciplinary response to patient needs as reflected in the care in which evidence is collected and how documentation accurately reflects the situation (Winfrey & Smith, 1999).
Role in Hospital Quality/Risk Management Processes
The term evidence describes data presented to a court or jury to prove or disprove a claim. Evidence is any item or information that may be submitted and accepted by a competent tribunal for the purpose of determining the truth of any matter it is investigating (Federal Bureau of Investigation [FBI], 1993). Evidence may be informational or physical.
When the family or associates of patients file concerns or complaints about the quality or appropriateness of care provided within the hospital, the clinical forensic nurse can provide a valuable link to the patient’s experiences on the nursing unit. She or he can apply specific data collected during forensic processes to assist quality or risk management staffs in conducting a more thorough RCA. What is learned in these processes can contribute directly to process improvements for the healthcare system under scrutiny and potentially would be useful to effect improvements in other facilities with similar problems.
Although the quality management (QM) staff of any medical facility may not play the same role as a court of law or jury, they do share at least one responsibility. QM staff must review a set of data or collection of facts and choose a course of action based on these particular facts. This course of action usually involves a change in process that should improve patient care delivery. It may also entail recommendations to monitor staff competency or to notify appropriate authorities when a suspicious trend of events is identified. Whatever the plan, decisions and recommendations must be based on facts, data, and good evidence.
However, the problem is that attempts to collect the necessary facts and evidence are often made by those without the appropriate training to do so, or the critical information reaches the QM staff long after the event has occurred. Opportunities to capture specific details about the scene and circumstances as well as the immediate recall of those involved no longer exist (i.e., the trail is cold). Further, healthcare providers in all specialties are usually hesitant to admit to or discuss any activities observed that could be viewed as an error in these litigious times.
So how appropriate is the plan of action if the collection of facts on which the decision was made is not accurate or complete?
George Wesley of the Veterans Affairs (VA) Office of Inspector General has pointed out the link between clinical quality management activities and forensic medicine/nursing. In a review conducted by the Office of Healthcare Inspections of more than 1000 cases over 11 years, forensic issues emerged prominently (Christ, Wesley, & Schweitzer, 2000). These forensic issues fall into several major categories including patient abuse/neglect, assault, suicide, homicide, medication or delivery system tampering, improper medication administration/error, and medical equipment or device tampering (Wesley, 2001).
Recognizing the link between forensic nursing and QM may greatly facilitate patient safety activities. The clinical forensic nurse is the crucial link between effective QM activities and the increased recognition of potential forensic cases by healthcare providers. Improved awareness will lead to increased sensitivity to the importance of preserving potential medical evidence for both QM and jurisprudential purposes (Christ, Wesley, & Schweitzer, 2000). Any of the specific roles of the clinical forensic nurse previously described contributes to more effective QM review and investigation efforts by assuring that real-time information/data/evidence is identified, collected, and preserved. This process should result in quicker identification of problem areas via a more thorough RCA.
Criminal Behavior: Opportunities in Hospitals
The internal culture of hospitals creates the ideal environment for the commission of criminal acts.
Change of shift dynamics
Barber (2009) believes that the timeframe between the changes of shifts offers the ideal window of opportunity for the individual who has designs for performing malicious or illegal acts. These acts may include tampering with infusions or life-support equipment or pilfering narcotics or other medications not routinely accounted for. This remains true for any specialty area in any healthcare facility. Several dynamics of both the behavior of the healthcare providers and the overall workplace setting should raise red flags among managers and investigators alike.
For example, staff members who are getting off duty, especially after a busy shift, may disengage from responsibilities too early, leaving loose ends and incomplete reports. Documentation and oral reports often take precedence over hands-on care activities, increasing the risks for omissions or duplications of tasks, medication administration, or specifically timed one-to-one checks on patients in leather restraints or seclusion. There is often a tendency to assume that the next staff will do it or that the previous staff has done it. The oncoming staff will often have the need to “get organized” (e.g., make a fresh pot of coffee) before beginning their shift and will only engage in work duties after the preceding shift has departed. Social interactions may take precedence over professional communications when shift workers merge. Patients as well as visitors are often aware of the confusion and chaos that may occur during a change of shift, and some may take advantage of these opportunities to engage in behavior that is not conducive to the health and welfare of other patients on the unit. Those caregivers who have ideas other than providing healthcare on their minds will also realize that the change of shift provides an optimum time for inappropriate, illegal, or otherwise dangerous behavior (Barber, 2009). Heightened awareness of all staff at these particular times may be encouraged and reinforced by the clinical forensic nurse provider.
A former coworker of a nurse convicted in the serial murder of patients shared this observation:
She would love to cause all hell to break loose after a very quiet evening shift… always at the change of shift. It seems as if she chose the times when the less experienced staff were on duty, especially if the nurse or doctor was new. She liked one very handsome doctor who worked every Friday night. You could count on a code being called when they were both on and always at the end of a shift. (Rix, March 2007)
Today’s reality is that most hospital systems across the country experience huge challenges to ensure that only competent clinicians provide quality hands-on patient care. Hospital inpatient units are filled to capacity with high-acuity patients. There are fewer experienced registered nurses (RNs) to manage the workload and little time to help one another. Supervisory positions have been eliminated in many areas to control costs. Further, many hospitals and medical centers are also teaching environments, which means there may be a mix of experienced and inexperienced staff on duty at any given time (Sullivan, 2009).
The aforementioned former coworker of the nurse convicted for serial murder added:
Before she was caught, she was very careful about whose patients she chose. If there was a very conscientious physician who stayed on top of details versus the doctor who was not quite as efficient, she would select the patients of the second doctor every time. She knew to look for that kind of thing. (Rix, March 2007)
Kristen Gilbert, 33, former registered nurse, was once described as someone who possessed top nursing skills and excelled during medical emergencies. In 2001, Gilbert was convicted of the murder of four patients and the attempted murder of three others. She was sentenced to four consecutive life terms in prison without the possibility of parole. Investigators believe she was responsible for more than 40 additional deaths.
Gilbert worked at the VA Medical Center in Northampton, Massachusetts, from March 1989 though February 1996. Coworkers began to notice a sharp rise in the number of deaths during her shifts on a 30-bed acute-care medical unit, and three nurses approached their nurse manager with their suspicions. From that point on, the lives of everyone concerned changed forever.
This case exhibits excellent examples of the ripple effect this type of investigation has on frontline care providers, mid-level management, hospital administration, forensic investigators, and the public relations of a hospital system.
The investigation revealed that Gilbert was injecting patients with epinephrine, a heart stimulant that can cause cardiac arrest. After injecting the patients and observing the desired effects, she would then call a code arrest. Many times, the patient would be successfully revived with her full participation on the code team. However, many patients did not survive these resuscitation efforts. There were too many unexplained deaths with her in attendance. The doctors and nurses had given her a nickname behind her back—“Angel of Death.” Prosecutors stated that she had been on duty for half of the 350 deaths that had occurred on her ward for the seven years she had worked there. The chance of that being a coincidence, they stated, is 1 in 100 million. The death rate tripled when she came onto that unit on that shift in 1991 compared to the previous three years. When she left that shift, the rates dropped down to 1988 levels once again.
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