Fix EMR issues before med/mal suit
Don’t assume you can blame vendor
Executive Summary
Electronic health records (EHRs) sometimes can complicate the defense of a medical malpractice lawsuit due to inaccurate or incomplete medical records.
To avoid problems, physicians should do the following:
- Perform a daily assessment of EHR documentation.
- Understand the implications of where information is inserted.
- Consider how system updates will affect the medical record.
Just as physicians wouldn’t be able to blame the manufacturer of fax thermal paper if hard-to-read information resulted in an error that harmed a patient, they might not be able to blame an electronic medical record (EMR) vendor for a problem with the system that resulted in a malpractice suit.
"It’s the practice’s responsibility to maintain the medical records, regardless of what the tool is. It makes absolutely no difference," says Ron Sterling, author of Keys to EMR/EHR Success (Greenbranch Publishing; Phoenix, MD) and president of Sterling Solutions, a Silver, Spring, MD-based consulting firm advising physicians on EMR implementation.
Sterling adds that every EMR contract he’s reviewed states that the vendor is not responsible for its use. Typical language states that "the vendor is not engaged in the practice of medicine. All information entered and displayed by the system is subject to the medical judgment of the user. The vendor is not liable for any damages whatsoever for any use or misuse of the information entered in to the EHR."
"Many physicians rely on techno geeks — EMR vendor staff or hardware support personnel — to make decisions for how to use the system to document patient care," says Sterling. "The problem is, the doctors may not understand the implications of features and workarounds presented by the trainers or technical staff."
For example, if a doctor complains about the difficulty of entering some type of information into the clinical record, the vendor, with the best of intentions, might suggest that the doctor could enter the information as a text note. However, that text note might not be usable by the EMR to warn about drug interactions, clinical care decisions, or reminders for services. In another case, a vendor told a practice to not sign encounter notes in case the doctors wanted to go back and make corrections.
"In either case, a malpractice discovery process would allow the plaintiff to question whether the patient was properly card for according to the practice’s own standards," says Sterling.
Just as physicians ensure payments are properly posted, and appointments have been properly closed or cleared, they need processes to maintain the accuracy of EMR documentation, advises Sterling.
Sterling says physicians should do a risk assessment to determine if EMR documentation demonstrates the practice’s due diligence and decision making. "You need to determine what things you need to do daily to keep records in good shape," he says, giving these examples:
- Ensure that encounter notes are signed and completed.
- Determine if outstanding care recommendations are properly communicated to patients and followed up on.
- Ensure that "electronic traffic" of lab orders, prescriptions, and referrals, is going in and out correctly.
Here are three examples of issues with EMRs that could cause problems during malpractice litigation:
• Some EMRs do not include phone messages from patients as part of the medical record.
"That poses a number of serious problems," says Sterling. "It’s like throwing out the old phone message booklet in the trash every 30 days."
He says the best solution to the problem is buying an EMR that includes messages as part of the patient record. "If your EMR does not include messages as part of the patient record, then you need to train doctors and staff to document messages as an encounter note or some other feature that is included in the patient record," he says.
Some EMRs allow the user to flag a message to indicate that it is part of the medical record. "In that case, you should make sure that everyone is trained on the messages that should be flagged, and maintain a quality check to ensure that all messages of clinical significance are included in the patient record," says Sterling.
• Alerts on drug interactions aren’t always given when medications are entered as free text.
Physicians need to understand the implications of where information is inserted, says Sterling. A physician might document sample drugs given to the patient in a free text note, for example, instead of the medication list.
"If there is a drug recall or serious interaction, the system won’t alert you," says Sterling. "If you are using that note feature, and not the standard medication capability, and end up with a bad situation with a patient, it’s going to be very problematic."
• When physicians enter information on a screen, and then print it out as a clinical summary or a referral letter, the EMR might add information to the document or omit information that is displayed on the screen.
"Many EMR products use a separate program with its own document-formatting script print information. For example, the production of a clinical summary, which is a Meaningful Use Measure, may be based on a separate document formatting script," explains Sterling. This situation means that all of the information won’t necessarily be included on the clinical screen, unless the physician references the information on the screen. Physicians might add a new finding or field to the clinical screen, but fail to add it to the script.
"Similarly, the script may include information from the patient’s record that was not reviewed with the patient or even documented," says Sterling. For example, some EMR products can include advisories or information that is in the script, but not documented in the patient record.
The bottom line is, physicians need to understand how their EMR works, emphasizes Sterling.
"I’ve seen a number of cases already where the doctor’s defense was, I didn’t know how the EMR works.’ You don’t want to be in that position," says Sterling.
