Electronic fingerprints are making some malpractice claims indefensible

Electronic fingerprints are making some malpractice claims indefensible

It’s impossible for defense to dispute metadata

Metadata, the electronic fingerprint that is left from all interactions done with electronic medical records (EMRs), is playing a pivotal role in some malpractice suits, but many physicians still don’t have any idea what it is, says Sandeep Mangalmurti, MD, JD, lecturer in law and fellow in the University of Chicago’s Section of Cardiology.

"A lot of physicians don’t fully appreciate how pervasive the surveillance of metadata is," Mangalmurti says. "As a rule of thumb, remember that everything is being monitored. Ask yourself, Would a jury take a jaundiced view of what I’m doing right now?’"

A plaintiff attorney can use metadata to learn how long the physician looked at patient charts, what part of the chart was looked at, who the physician contacted, and what time the physician made changes to the patient record.

Because metadata is discoverable in a lawsuit or medical board inquiry, all the physician’s interactions with the EMR can be accessed by the plaintiff attorney, Mangalmurti explains.

"They are going to know every single thing you did on the computer, what you did, and how long you did it for," he says. "There is no place to hide."

The question, "You’re not going to argue with the computer, are you?" is difficult for physicians to answer. "Even if you are doing things exactly right, you look bad and you lose credibility," says Mangalmurti. (See related stories on how metadata is used during malpractice suits, p. 41, and risk-prone EMR charting practices, p. 39.)

Plaintiff attorneys are only beginning to understand how metadata can help them to win malpractice lawsuits, but they are learning quickly, according to Mangalmurti.

"Once we get a few lawsuits that hinge upon metadata, routine discovery of metadata will become a part of litigation," he says. "It could be a very powerful technique for the plaintiff."

Currently, plaintiff attorneys don’t routinely obtain metadata, mainly because it is a lot of information to sort through and the process is so time-consuming, Mangalmurti explains.

"I don’t think it has reached the point where they can go on vast fishing expeditions looking at reams of metadata to find things to justify a lawsuit," he says.

Instead, lawyers are using specific pieces of metadata to try to answer questions that arise during the lawsuit, such as when a physician looked at a test result. "But once it becomes easier to sift through this data, and people become more facile with it, you could definitely have plaintiff attorneys using metadata to exploit vulnerabilities," says Mangalmurti.

During a deposition in a recent medical malpractice case, a physician at a skilled nursing facility stated that he had instituted neurological checks every 15 minutes on a patient with a head injury.

Ken Zafren, MD, FAAEM, FACEP, FAWM, who reviewed the case, said, "The nursing notes documented neuro checks exactly every 15 minutes, which, in my opinion, was not believable." Zafren is EMS medical director for the state of Alaska and clinical associate professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center.

In fact, the metadata showed that all the neurological checks were documented after the patient had been taken to the emergency department (ED) by ambulance.

"By the time this elderly patient who was on warfarin, Plavix, and aspirin presented to the ED, he had a nonsurvivable subdural hematoma," says Zafren.

The ED physician expert at the Level I Trauma Center tried to help the nursing home physician by saying that it would have taken too long in any case to get a CT scan after the patient arrived.

"But the metadata of the EMR showed that virtually all of the delay in obtaining the CT on a busy Saturday night in the ED had to do with the difficult intubation," says Zafren. "The nursing home physician settled, on very favorable terms for the plaintiffs."

Winnable cases must settle

During another malpractice lawsuit, metadata revealed that the physician defendant had "copied and pasted" the patient’s history without adding the fact that the patient had an aortic valve replacement, which would have alerted the healthcare team that the patient was taking warfarin.

Kathy Dolan, RN, MSHA, CEN, CPHRM, a senior risk management consultant at ProAssurance Casualty in Okemos, MI, said, "The documentation stayed the same for many months. The patient died from a medication error that was contraindicated with patients on Coumadin." The physician was unable to be defended when the plaintiff exposed months of template charting that did not reveal an aortic valve replacement, Dolan adds.

"The EMR was the type that the physician had to go in and change the template, or it populated as normal values," he says. "He testified that in order to save time, he typically just hit enter.’"

The physician filled out the history and physical document in the hospital, and he noted the aortic valve replacement. But when the patient came to the office, he left the template as "normal" under the auto-fill template rather than adding the abnormal findings.

In another malpractice claim, the EMR audit trail was used to determine when the nurse accessed the radiology report relative to a physician’s verbal order for a hospitalized patient.

"The patient aspirated during the procedure, causing neurologic injury," says Dolan. "The case turned on when the physician knew the information."

The case was settled after the metadata revealed that the nurse accessed the radiology software, presumably read the radiology report and informed the physician, and entered the physician’s order one minute later.

"We were unable to defend the physician since the EMR indicated he was informed of the results but failed to notify other treating physicians prior to a scheduled EDG [esophagogastroduodenoscopy]," says Dolan.

SOURCES

• Kathy Dolan, RN, MSHA, CEN, CPHRM,Senior Risk Management Consultant, ProAssurance Casualty, Okemos, MI. Phone: (608) 824-8308. Fax: (608) 828-1196. Email: [email protected].

• Sandeep Mangalmurti, MD, JD, Lecturer in Law and Fellow, Section of Cardiology, University of Chicago. Phone: (773) 702-1000. Fax: (773) 702-8875. Email: [email protected].

• Marlene Nazarey, RN, MSN, CPHRM, Risk Control Director, Healthcare Segment, CNA, Chicago. Phone: (424) 206-9840. Email: [email protected].

• Ken Zafren, MD, FAAEM, FACEP, FAWM, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. Fax: (907) 346-4445. E-mail: [email protected].