EMR Charting "Creates New Areas of Liability" for EPs
Time-stamped electronic medical record (EMR) entries became the primary focus during a meeting with a patient’s family and their attorneys at Carilion Clinic in Roanoke, VA, in which concerns were being addressed about a patient’s adverse outcome after a procedure performed in the emergency department (ED).
"They were looking at time stamps from the doctor’s note, and lining those up with time stamps from the nursing notes, and asking why the patient wasn’t managed differently," says John Burton, MD, chair of the Department of Emergency Medicine.
Burton then had to explain to the family and attorney that time stamps in the EMR don’t necessarily indicate when something was done. "We might enter something in the EMR when we actually did it 15 minutes ago," he says.
Time-stamped EMR entries can cause plaintiff attorneys to draw inaccurate conclusions about care provided in the ED, says Burton, "but regardless, it’s a very powerful tool to really ratchet down on the provider as to what we knew, and when we knew it."
Emergency physicians (EPs) face unique risks involving time-stamped EMR documentation, especially in rural hospitals, says Anjali B. Dooley, JD, a health care attorney in St. Louis, MO. "An ER physician can only document after stabilizing or treating the patient," she says — which could result in misconceptions about when something was done.
Metadata in EMRs "creates a huge database of almost unintelligible information, but it’s also all discoverable, and it can be misconstrued as to what it means," says Kevin Klauer, DO, EJD, chief medical officer for Emergency Medicine Physicians in Canton, OH. He adds that EMRs used in EDs "create new areas of liability and complicate existing areas of liability."
The ED’s EMR audit trail tells plaintiff lawyers, years after the care was rendered, who accessed the patient’s chart, when and where the chart was accessed, and what type of information the provider input or reviewed, says Marcie A. Courtney, JD, an associate at Post & Schell in Philadelphia, PA.
"EMR audit trails are typically produced in discovery to all counsel," she notes. These can be used to challenge the accuracy of the defendant EP.
An EP may testify at a deposition that the chest X-ray results were not available during his shift, for example. "The EP will lack credibility before a jury when the audit trail demonstrates that the test results were available 30 minutes before the physician wrote an entry in the patient’s chart, and therefore should have been reviewed," says Courtney.
Less Opportunity to Catch Errors
Since the EMR makes it easier for an EP to enter information quickly into the chart, more mistakes in documentation are likely to occur, says Courtney. "Items may be unintentionally clicked on, or may be accidently overlooked," she says.
For instance, a patient’s neurological exam may be abnormal due to impaired speech. However, in trying to quickly document findings, the EP might accidentally click another choice on the drop-down screen, instead of "impaired speech." "Delays in treatment or incorrect treatment may be the result of this type of documentation error," Courtney says.
EMRs have made some ED processes less transparent, in terms of identifying mistakes that could harm patients, according to Klauer. It takes EPs longer to do order entry and documentation, for instance, "but as far as delivery of care, pressing enter’ sends an order much more quickly than handing it to a unit secretary and then a nurse," he says. "In addition, putting the computer between providers has reduced communication."
Similarly, Klauer has observed EPs inadvertently select the wrong medication without realizing the error or determining how it occurred. "Either they clicked on the wrong area, the mouse has a glitch, or the computer screen jumped," he says. "We have had cases reflecting that issue."
Previously, EPs quickly realized that they picked up the wrong paper chart after reading through it. If EPs go into the wrong patient record in the EMR, however, they are less likely to catch the mistake since all screens appear the same.
Klauer says that in his experience, EPs often click through the clinical decision support EMR questions simply to get through the chart in order to get to the next patient.
"This validates the questions being asked, even if we don’t think they’re important," he says. "In doing so, we create a false standard of care that it’s the right way of doing things." He offers these recommendations for EPs to reduce legal risks involving EMR charting:
• EPs should avoid overdocumentation due to grouping physical examination items together.
"You need to be very mindful of overdocumentation. Only document what you’ve done," says Klauer.
If it appears as though something is included in a group of items that wasn’t done by the EP, the EP "either needs to have it removed, or reflect that you can’t remove it but that’s not what you did," says Klauer.
• EPs should advocate for maintaining a medical decision-making section in the EMR.
The EP can then truthfully state something to this effect, says Klauer: "The only thing in the EMR that are my actual words is this section. This is where I describe what is happening with this case. The rest is difficult to read. Although I agree with the statements made, I have to point and click within the confines of the system, except for this area."
• If there are data that haven’t returned for a patient who left the ED because he or she was admitted, discharged, or left without being seen, EPs must ensure there is a mechanism to identify this and be sure the data are reviewed.
"What I’ve seen happen is that if a patient leaves, they’re removed from the EMR tracking board," says Klauer. "So therefore, no one is checking those results."
EDs should have policies that don’t allow patients to be removed from a tracking board in the EMR until pending results come back and they are reviewed, advises Klauer.
"There are cases out there of people with positive results that were undetected, who had bad outcomes because of it," says Klauer. One such case was well-publicized in the lay press, involving a child who died after being discharged from a New York ED. One of the issues in this case was that the patient’s elevated white blood cell count didn’t post into the EMR as resulted data until the patient had already left the ED.
"Did the EMR hide that? Well, if you are printing out lab data and putting it on the chart like we used to, maybe it would have been easier [for the EP to realize that the results hadn’t been returned]," says Klauer.
One solution is for the EMR to alert EPs of outstanding test results that haven’t come back and/or haven’t been reviewed yet, and possibly not allow EPs to disposition the case without acknowledging those results.
"Even if that lab test wouldn’t have changed your medical decision-making, the plaintiff’s expert will argue otherwise," says Klauer. The EP will then have to answer the question, "Why did you order a test result if you didn’t care about the result?" "That is never going to be a defensible position to be in," says Klauer.
EPs Face Risks of Fraud
A January 2014 report from the Office of the Inspector General (OIG), CMS and its Contractors Have Adopted Few Program Integrity Practices to Address Vulnerabilities in EHRs, warns that certain EHR documentation features, if poorly designed or used inappropriately, can result in poor data quality or fraud.
"The Department of Health and Human Services has authorized them to pursue this fraud," notes Klauer. (To view the report, go to http://1.usa.gov/1afAtJE.)
"What is amazing to me is that the government pushed meaningful use, but when costs increase because there is greater charge capture, they say, This is fraud and we are going to crack down on you,’" says Klauer.
The report stated that the two most common electronic health record (EHR) documentation practices used to commit fraud were copy-and-paste and overdocumentation. Klauer says both of these practices put EPs at risk for allegations of billing fraud.
With overdocumentation, he says, "they are very clear. If you are adding things to the record in macro statements and drop-down boxes that you didn’t actually do and the claim is submitted, that’s fraud."
Similarly, metadata can show that an EP copied part of a previous record and pasted it into the current record. If a patient returns to the ED several days after a prior visit, both times with the complaint of abdominal pain, the EP might move the physical exam from the previous visit to the current record because it’s unchanged, for instance.
"The OIG says you need to verify the accuracy of that information," he says. "But it’s going to be very difficult to prove that you verified the accuracy, as opposed to just cutting and pasting the old data, if you copied and pasted a portion of the old record. When it comes down to it, it’s not a safe practice."
If the EMR is set up to auto-populate the patient’s medications from a previous visit, "that’s probably OK," says Klauer.
However, if the EP goes in and looks at the record, pastes it in the new record, and then bills that chart, "it is very likely they’ll see this as fraud unless you can defend it, which I think will be very difficult," says Klauer.
Sources
For more information, contact:
- John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. Fax: (540) 581-0741. E-mail: [email protected].
- Marcie A. Courtney, JD, Associate, Post & Schell, Philadelphia, PA. Phone: (215) 587-1186. Fax: (215) 320-4780. E-mail: [email protected].
- Anjali B. Dooley, JD, St. Louis, MO. Phone/Fax: (877) 566-8499. E-mail: [email protected].
- Kevin Klauer, DO, EJD, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH. E-mail: [email protected].
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