When you can't locate nursing notes in your EMR
Legal risks will escalate
Would a jury be sympathetic if a physician failed to review nursing notes that could have prevented a patient's bad outcome, simply because they were buried somewhere within a voluminous electronic medical record (EMR)?
This situation is unlikely, says Catherine Ballard, JD, a partner and vice-chair of the health care group at Bricker & Eckler in Columbus, OH. A jury likely would find that the physician has a duty to look at all relevant information, regardless of whether it is easy or difficult to find it in the EMR, Ballard adds.
"I think it is highly unlikely that an EMR company will agree to indemnify a hospital or a physician if the hospital or the physician has a hard time finding nursing notes," she adds.
There is a substantial population of healthcare providers who did not start out as computer literate, so their proficiency is not as good as it could be, says Ballard. "We are still at a point in time where hospitals are trying to fit into what is offered by companies, rather than companies giving the hospitals what they need," she adds. "This will improve over time. One day, people will be looking back on this time of transition and be amazed at how archaic we look."
Physicians should engage in ongoing discussions with the EMR vendor about the difficulty of locating nursing notes and how the inability to access the information is putting patients at risk, advises Ballard. (See related story, below, on important questions to ask EMR vendors to reduce liability risks.)
"Ask the nurses for assistance in getting the access that the physician needs," she advises. "The EMR is here to stay, and paper is not going to be an option."
Vendors could share malpractice liability Did a physician miss a piece of crucial information because multiple clicks were required to retrieve it from the electronic medical record (EMR)? If so, the EMR vendor possibly could be named alongside the physician in the event a malpractice lawsuit is filed, according to Sharona Hoffman, JD, LLM, co-director of the Law-Medicine Center at Case Western Reserve University School of Law in Cleveland, OH. "I'm actually surprised we are not hearing more about this," says Hoffman. "Plaintiff attorneys may not be sophisticated enough to realize that there is fertile ground there." Attorneys still might consider EMRs to be similar to word processors, "but they are much more than that," she says. "When plaintiff attorneys come to realize that, they may think again about whether they want the vendors named as parties." Order submission, record searches, alerts, and reminders all occur through the EMR, Hoffman explains. Some contracts with physician groups might shield vendors from liability, and this shield might be one reason vendors aren't being named in lawsuits routinely, she adds. "There is a lot of pressure on practices to adopt these systems quickly, because there are incentive payments available," says Hoffman. "There is perhaps not enough attention being paid to the 'usability' of the systems." Here are Hoffman's recommendations to reduce legal risks involving EMRs: • Learn as much as you can about potential problems with the system. User complaints might be difficult to obtain, as vendors might include language in the contract requiring that problems not be publicized by facilities and because the Food and Drug Administration doesn't require problems with systems to be reported, says Hoffman. "But that communication line is going to have to open up," she says. "It is important to do as much research as possible about the satisfaction levels of other users." • Consider the vendors' responsiveness to complaints or requests for changes. A psychiatrist's needs from an EMR will be quite different from a neurologist's needs, notes Hoffman, and reSources of physician practices vary. "Consider how sophisticated your own IT department will be when issues come up," she recommends. "A smaller provider is going to have to depend on the vendor." • Consider "usability." "Can you easily search for the data you need? How easy is it to distinguish information, if the nurse wants to be sure the physician sees Detail X?" asks Hoffman. While paper records would reflect only what the patient told the doctor at the time of treatment, the EHR is ideally a comprehensive record of the patient from birth until the present date, she explains. "Ironically, the availability of a huge amount of information can lead to liability, because there is no way the doctor can read the entire EHR," she says. "But if something is missed, and it was a few clicks away, a patient may say you are liable for not having looked at it." Source For more information on locating nursing notes in the EMR, contact;
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Would a jury be sympathetic if a physician failed to review nursing notes that could have prevented a patient's bad outcome, simply because they were buried somewhere within a voluminous electronic medical record (EMR)?
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