While EHRs offer many benefits to ED providers, they also carry some inherent risks. There are specific examples of issues that can result in malpractice litigation, according to Jonathan E. Siff, MD, MBA, FACEP, associate professor of emergency medicine and associate chief medical informatics officer at The MetroHealth System in Cleveland:
• The ability to “copy and paste” information from previous visits poses significant risks. ED providers must be extremely careful when “pulling forward” data from other encounters. “Failure to do so can create inaccurate charts and become kindling for fraud investigations,” Siff warns.
• Using templates where information is preloaded or can be entered in bulk easily creates substantial risk for inaccuracies. “ED providers are responsible for everything in the chart, regardless of how the information ended up there,” Siff says. EPs should carefully review preloaded content, information in drop-down lists, and information pulled in by macro before electronically signing notes, he adds.
• Pop-ups and alerts in decision support tools can become disruptive, causing ED providers to ignore them. EPs acknowledge the alerts electronically, but without taking appropriate action. This is a dangerous practice. “Failure to address a clinically relevant alert, particularly in the setting of a relevant missed issue, which leads to a malpractice case, can lead to a significant legal risk,” Siff cautions.
By acknowledging the alert, EPs are indicating they are aware of it. If the EP prescribes a medication or a study with IV contrast to which the patient is allergic, the EHR contains damning evidence proving the EP knew, or should have known, about the allergy. “The provider has made what will appear to be a clearly preventable error, and one where they ignored warnings,” Siff offers.
• Metadata tracks, often to the second, ED providers’ actions. Timestamps sometimes support the defense of an ED malpractice claim, but also can concretely refute the EP’s version of events. “This contradictory information can be used by a plaintiff to impeach testimony and create doubt in the rest of the care provided,” Siff observes.
It is a tough sell to argue an EHR timestamp is wrong. Siff gives this example: The EP charts tPA was given to a stroke patient at 12:30, but the order does not go in until 12:45. It seems as though the EP documented the drug was given before it was even ordered.
In reality, both times are correct. The tPA was pulled from medication stock in the ED at 12:30, and the order goes in at 12:45. The order just needed to catch up with what already happened clinically. “But it creates doubt,” Siff notes.
The best approach is for the EP to address it right in the chart. Siff gives this example of good charting on this point: “tPA pulled via override from medication stock. Order placed after the fact for reconciliation.”
Sometimes, the problem is that timestamps of various ED providers conflict. An EP might document tPA was administered at 12:30. The ED nurse charts it in the medication administration record an hour later without backdating the time the drug actually was given. “This is a common occurrence in my experience,” Siff shares.
In stroke litigation where the exact time tPA was given is in dispute, conflicting times complicate matters for the defense. Even in cases where timing is not so critical, timestamp conflicts can hurt the EP’s credibility. For instance, an EP documents seeing the patient at 10:00, but the ED nurse does not “move” the patient to a room in the EHR until 10:15. The ED chart looks like the EP is claiming to have seen the patient before the patient was brought back.
The same kind of thing can happen at discharge. The EP documents a reassessment of the patient that actually occurred 20 minutes earlier. In the interval, the ED nurse discharges the patient. It looks like the EP is claiming to have conducted a reassessment after the patient left. “In reality, I did it before. But if I failed to properly timestamp my exam, it would look suspicious,” Siff adds.
Metadata from EHRs are no longer a novelty in malpractice litigation. This information is requested routinely in ED claims. “We see it in every case now. The plaintiff attorney thinks they will find a smoking gun,” says Jesse K. Broocker, JD, an attorney at Weathington McGrew in Atlanta. To guard against this possibility, ED defense attorneys proactively look at the EHR metadata.
“Sometimes, the truth hurts, and something in the metadata is bad for you. But it’s better to know about it,” Broocker advises.
This often comes up with “curbside consults” conducted in the ED. Broocker offers this example: The EP says the neurologist gave an outpatient work-up recommendation for a new-onset seizure patient. The neurologist insists a formal consult never happened, only a review of a single CT scan. While the CT was normal, labs and exam findings were concerning. The patient experiences a major seizure several hours later. The lawsuit alleges the ED patient should have been admitted, and names both the EP and the neurologist. The defense team says the EP secured the appropriate consult and relied on the neurology recommendation. The neurologist insists the EP never asked for an evaluation.
“The EHR audit trail can be case-turning about whose story is right,” Broocker says. If it shows the neurologist only looked at the CT scan, it is strong evidence in the neurologist’s favor. “But if the neurologist looked at the chart extensively over a long period of time, that supports the ED physician’s position that a formal consult was obtained and provided,” Broocker adds.
Here are some other EHR issues Broocker has seen complicate the defense of ED malpractice claims:
• Outdated vital signs may be auto-populated in the ED chart. The EP opens the EHR. Before they perform their exam, the EP leaves the note open for a period. Some EHRs will auto-populate with the patient’s vital signs. This may not be current data, but whatever was last recorded. “By the time the EP signs off on the chart, those are old vitals,” Broocker observes.
• Plaintiff lawyers use timestamping to prove delayed care, but it is misleading. “If the EHR makes it seems like one narrative is correct, you better believe they’re going to do everything they can to push that story,” Broocker reports.
Timestamps show when something is documented, not necessarily when it actually happened. “Sometimes, we’ll see audit trails that are a little more nuanced, and we can tell exactly what they were looking at,” Broocker shares.
This is the case with diagnostic test results. “X-ray or CT imaging will have specific order numbers on them that you can correlate. You can be reasonably sure the ER doctor saw the result at a certain time,” Broocker adds.
• Long gaps in EHR timestamping make it look like the patient was ignored. “In reality, the EP poked his head in several times,” Broocker says.
EPs do not routinely document all the times they looked at the patient because there is nothing new to report. “Plaintiff lawyers will use that to establish that we ‘punted’ on the patient and didn’t monitor the patient’s ongoing status,” Broocker says.
Diligent use of free text notes can refute this. “Don’t add your H&P notes in two sentences. Take the extra 30 seconds to write a narrative,” Broocker suggests.
Simple statements (“reassessed the patient”) convey a thorough, involved EP. “That’s good charting that I don’t feel bad asking ER doctors to do, knowing that they can’t document every little thing they say or do,” Broocker says.
While electronic health records offer many benefits to ED providers, they also carry some inherent risks. Learn more about specific examples of issues that can result in malpractice litigation.
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