November 18, 2004

Written Statements for Incident Reports

Lately, several people have asked me about the advisability of having employees write statements to accompany reports of incidents sent to DADS. It is my position that having your employees write such statements is neither advisable or required.

Thus, the next question is--how do you conduct your investigation if you don't have your employees write statements? My answer is that your investigator actually investigates. That means interrogating employees who are witnesses to an incident or who may have material information.

What you are seeking in an investigation is facts. If you allow employees to write their own statements--you are most likely to get emotion and conjecture. When an incident occurs, it is natural for your staff to feel guilt and fear about it. It is your investigator's job to cut through that and discover facts--not feelings.

The investigator (who should be a member of your Quality Assurance Committee acting as part of that committee) should sit down with each witness and ask pointed and specific questions about the incident, recording the relevant and material answers in detail. Use those answers to fill out the "investigation summary" section of the incident report form you must turn into DADS which is linked here.

I want you to look closely at this form. When it speaks of witness statements, it says attach them "if possible." Do not make it possible! Understand that under the Rules of Civil Discovery in Texas, such statements are discoverable by plaintiff's personal injury lawyers. Do you want to be party to a lawsuit that hinges on a statement written by a frightened nurse aide? Don't do it. Furthermore, if you instruct your staff to write their own statements, they are possibly writing documents that will later end up in the hands of law enforcement. That nurse or nurse aide may end up signing a piece of paper that--perhaps unfairly--puts them in jail for abuse or criminal neglect.

If you think that it is absolutely necessary to obtain employee statements--have your attorney assist you in drafting them based on the information given to the investigator by the employee. Consider this--when members of law enforcement obtain written statements from witnesses--they don't let the witnesses sit there and write their own statements. They interrogate--and from the results of their interrogation--they type up the factual parts and have the witnesses review the result for accuracy and sign it. If you absolutely think you have to have a statement and you don't feel that the situation warrants hiring an attorney--the investigator should draft the statements based on the interrogation and the facts.