Executive Summary
Some electronic medical record features can result in physicians using "workarounds" to streamline documentation, but these actions can be legally risky. Plaintiff attorneys look for indications that physicians:
carelessly checked drop-down boxes
failed to review information carried over from previous visits;
failed to indicate that a certain diagnosis was considered.
Some electronic medical record (EMR) features result in physicians "getting a little careless on what seem to be trivial issues, but which can come back to haunt them," says Robert J. Milligan, JD, an attorney at Milligan Lawless in Phoenix.
Instead of using "workarounds," advises Milligan, physicians should address the problem with the EMR vendor or the hospital’s information technology (IT) department.
Some plaintiff attorneys are videotaping physician depositions using two screens: one shows the physician, and the other shows the record the physician is looking at. "So if the physician used a workaround, that’s going to be highlighted in fairly dramatic fashion," says Milligan. Here are some examples of EMR charting practices that can complicate a physician’s defense:
• Being careless with drop-down boxes.
Some EMRs ask physicians if they’ve asked the patient about tobacco use. Unless physicians click on "yes," they can’t go on to the next field. "Physicians have to ask the question, or cheat, by clicking the box that says yes,’ and moving on," says Milligan. "Cheating may be easier, but it’s never the right solution."
• Failing to review information carried forward from one patient interaction to the next.
A pregnant patient being seen for an ear infection might have a note carried over from a prior visit about an abdominal examination, for example. When questioned about the visit in a legal proceeding, the physician then has to admit he or she did not really examine the patient’s abdomen as the record indicates.
"Now you’ve tainted the whole record, because you admitted that something your note says you did, you didn’t really do," says Milligan. "You have now told us that the record of what you did is not completely reliable. That’s a pretty bad place to start."
To reduce risks, physicians shouldn’t carry information forward unless the prior notes are reviewed and found to be accurate, with a notation stating, "Following information is from prior visit, which is all still in effect," advises Milligan.
• Failing to include medical decision-making.
"This is often the critical element in a malpractice case, a state medical board review, or even a billing audit," says Milligan. If the physician’s decision-making isn’t evident in the EMR, the plaintiff expert can infer that the physician didn’t consider a particular issue.
"I have heard experts say, If the defendant physician had considered X, Y, and Z, and made a judgment call, I would not be critical. But according to the record, the physician never even gave that any thought,’" says Milligan. The physician’s insistence to the contrary, now that he or she is a defendant in a lawsuit, is likely to appear self-serving.
• Failing to realize that EMRs autopopulate fields.
"This is not always clear to the provider," says Michelle M. Garzon, JD, an attorney at Williams Kastner in Tacoma, WA. "Automatic fill-ins are viewed as a time-saver, but they can get providers into trouble if they’re not thoughtful."
During litigation, physicians are sometimes surprised to see that the EMR printout automatically checked off boxes for things that weren’t done for that particular patient.
The EMRs might indicate that bilateral pulses are "within normal limits" even in a patient with an amputated foot, for example. "It’s within normal limits for the person, so the provider doesn’t check anything. But it comes out as showing that they did," says Garzon.
If the EMR has "within normal limits" as the default, the plaintiff attorney is likely to ask the physician whether he or she went through each box before checking it. "If the physician only puts in the abnormalities, then it’s hard for them to say, I did all those things,’" says Garzon. (See related stories on why IT expertise is needed to explain EMR charting below, and trends in e-discovery, p. 9.)
