Executive Summary
Time-stamped electronic medical record (EMR) entries can complicate the defense of a malpractice claim if they provide a reason to question the physician’s credibility.
The defense must explain that entries don’t necessarily indicate when something was done.
Time stamps can make a case more defensible if they support the provider’s version of events.
In some cases, time stamps have shown that entries were "forward charted" before an event occurred.
It’s a reason for jury to question physician’s integrity
During recent malpractice litigation, it was revealed that the defendant nurse had "forward charted" a number of standard items about the patient’s condition throughout the shift.
"Many of these items would have been expected to be true, such as patient sleeping comfortably,’ but unfortunately turned out not to be true at all," says Scott Martin, JD, a partner with Husch Blackwell in Kansas City, MO.
Although the patient was charted to have been "sleeping comfortably" at 03:00, the fact was that there was a full code taking place at 03:00. "Based in part on the time-stamping of the early entry as compared with the code documentation, plaintiff’s attorney was easily able to identify the improper charting and then skewer the nurse with it," says Martin.
Time-stamped electronic medical record (EMR) entries complicated the defense of a malpractice case involving a 58-year-old patient with a brain tumor who became quadriplegic secondary to an intraoperative complication. The plaintiff argued that hypotensive episodes during the case led to cord ischemia.
When the plaintiff in this case analyzed the EMR audit trail, it was discovered that the anesthesiologist documented that he had been present at the end of the case, but he did so hours before the case ended.
Everything the anesthesiologist did was then subject to question, says Jonathan M. Fanaroff, MD, JD, associate professor of pediatrics at Case Western Reserve University School of Medicine and co-director of the Neonatal Intensive Care Unit at Rainbow Babies & Children’s Hospital, both in Cleveland, OH. "He very well may have been there the whole time, but any jury would question his integrity," Fanaroff says. The case went to trial, but was settled during the trial.
Critical piece of evidence
Time stamps complicate the defense if they provide a reason to question the physician’s honesty.
"Plaintiff lawyers may try to insinuate wrongdoing based on time stamps, such as asking why a physician looked at the record or printed out certain documents," says Fanaroff.
Any malpractice case involves the development of a narrative, often competing narratives, regarding what happened and when, says David S. Waxman, JD, an attorney with Arnstein & Lehr in Chicago.
"The time stamp is obviously a critical piece of evidence helping to determine the when,’" says Waxman. In some cases, however, the time stamp doesn’t reflect when certain events occurred. It only reflects when they were charted.
"Depending on how the events and care are memorialized, the time stamp created when the physician’s note is finally inputted can warp the narrative and allow for the creation of a story, which may be plausible but untrue," says Waxman.
There is a constant tradeoff between efficiency and completeness of charting, he acknowledges. "But when it comes to timing of important events in a patient’s care, whether it be a change in the patient’s condition, receipt of test results, or issuing new orders, making the effort to note when those events occurred is well worth the minimal investment in time required," says Waxman.
Defense must explain EMRs
Time-stamped EMR entries can be confusing to a jury, because the historic expectation is that the time noted represents the time of the event, not the time of the charting.
"Most adults have seen some type of paper chart based on the time-noted process, but relatively few are familiar with how computer charting may be different," says Martin.
The specific sequence and timing of events is often critical in malpractice cases. "A handful of minutes may have literal life and death consequences, especially in a code situation," says Martin. "Even if a few minutes may not matter, a few hours often will."
End-of-shift notes are generally time-stamped after a shift has ended, but they refer to events that occurred throughout the shift. "If there are not individual times referenced within the note, it will be difficult to place events in the proper sequence," says Martin. Once a plaintiff’s attorney identifies inconsistent items in a chart, she will often urge the fact finder to mistrust the entire chart. "Then the defense is forced to explain the medical care and the chart," says Martin.
Give reason for late entry
Whenever an EMR entry is made after the fact, the physician should document the reason for the late entry, advises Fanaroff.
"Medical and nursing staff need to identify the actual time of events and not rely on the time-stamp," says Martin. "This sounds basic but is not universally done."
Clinicians should absolutely not document the outcome of an event or procedure in advance, says Fanaroff. "It is difficult to find a legitimate reason to document something before it occurred," he says. "It may be that it was done in the paper era just to be sure that the charting was complete."
Changes or corrections might not be visible on the EMR screen. "But the paper printouts of charts I have reviewed identify original and revised versions of a record," says Martin. The author and timing of any changes are also identifiable.
"I have not seen an after-the-fact effort to falsify an electronic chart," says Martin. "But the only time I had heard of that in a paper chart, the whole case became indefensible."
