Executive Summary
Inaccurate electronic medical record (EMR) entries have complicated the defense of some malpractice cases.
EMR charting can result in additional defendants being named.
Otherwise defensible cases have been settled.
Inaccurate drop-down charting can damage a physician’s defense.
A hospital recently found itself named as a defendant in a malpractice lawsuit brought by a patient following complications from spinal surgery, as a result of the surgeon’s inaccurate electronic medical record (EMR) charting.
The day before a scheduled fusion surgery with spinal decompression, the patient developed an epidural hematoma. The surgeon waited for several hours to take in the patient for surgery to evacuate the hematoma.
"The delay was due to the surgeon wanting to do both the evacuation and the fusion in the same procedure and, as such, he had to wait until the spinal cord monitoring and other instruments could arrive at the hospital," says Justin S. Greenfelder, JD, an attorney with Buckingham, Doolittle & Burroughs in Canton, OH, who is defending the hospital.
However, there was no need for these instruments to simply evacuate the hematoma. In the EMR, the surgeon stated that the delay was due to a hospital policy that spinal cord monitoring be in place for all decompression procedures. "This was not true," says Greenfelder. "The surgeon, who was not a hospital employee, attempted to mask his own poor decision, or potentially other motives, by blaming nonexistent hospital policies and procedures."
The surgeon also wrote in the EMR that "emergent request for expedition of this procedure was fraught with difficulties from policies and procedures."
"Again, this was not true, as the surgeon had refused to take the patient in to surgery earlier despite the availability of personnel and an operating room and a direction from the head of the department to proceed with the evacuation," says Greenfelder. In fact, there was no hospital policy that prevented the patient from being taken to surgery emergently to evacuate the hematoma. The patient suffered terrible complications and died a few months later.
"This false entry in the EMR by the surgeon was the reason the hospital was included in the malpractice/wrongful death action," says Greenfelder.
The plaintiff’s counsel indicated that he did not believe the surgeon’s accusation but, because the surgeon had put these statements in the EMR, he was compelled to include the hospital in the suit. The case is currently stayed, as the surgeon has filed for bankruptcy.
"Although I am confident that the hospital will be extricated from this case, the spine surgeon’s statements in the EMR led the hospital to incur costs of defense that should never have been incurred," says Greenfelder.
Inaccurate drop-down charting
In a recent malpractice suit against an obstetrician, nurse midwife, and hospital, the obstetric nurse’s drop-down entries, which were later claimed to have been done in error, made the case more difficult to defend.
Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago, says, "I believe the principal reason the hospital and nurse midwife were inclined to resolve the case by settlement were those entries that they maintained were not accurate."
While drop-down charting is becoming the norm, says Kreisman, it is not uncommon that clerical errors can be damaging to a physician’s defense. "Particular attention should be given to those entries," he advises.
Once it’s proven that part of a medical chart is not accurate, says Kreisman, "that burden is a difficult one to overcome in many cases."
Kreisman routinely requests EMR "audit trails" from defense attorneys, as a way of tracing the medical provider history for the patient during a hospital course. "The audit trail or audit log tends to be in chronological order, and in most cases, shows the computer entry of any medical provider taking care of a hospital patient," he says. Kreisman uses the audit trail in these ways:
• to find out who had access to the EMR, and the time and date the records were accessed;
• to identify which doctors, nurses, and others reviewed diagnostic tests;
• to learn who entered test results or medical information on a particular patient.
"The audit trail is very important in medical negligence cases, to show whether or not a physician reviewed or did not review a diagnostic such as an MRI or an X-ray," says Kreisman. "This could be important in the outcome of the case."
Steven M. Levin, JD, founder and senior partner at Levin & Perconti, Chicago, says EMR charting is "easy to read, but difficult to interpret." The healthcare practitioner’s thought process is often missing, and the same information often is repeated again and again. Still, says Levin, "any data you have access to that can benefit your clients case is well worth the time and effort required to properly mine’ it. When EMRs are available, we will always request them."
If Levin discovers that a record was deleted, falsified, or changed after the fact, this action triggers further investigation. "We frequently see record falsification in nursing home negligence cases, and the electronic trail confirms our suspicions," he says.
