Is EP ‘Over-documenting’ with EMRs? Malpractice Defense Will Be Difficult
October 1, 2015
In some malpractice litigation against emergency physicians (EPs), electronic medical record (EMR) charting is making the plaintiff attorney’s job much easier.
EPs are “documenting significantly less because they’re relying too much on checkboxes,” according to Joan Cerniglia-Lowensen, JD, an attorney at Pessin Katz Law in Towson, MD.
“You get ‘yes,’ ‘no,’ or half answers instead of narratives and a complete H&P.”
Cerniglia-Lowensen says EMRs are making it more difficult to defend malpractice claims because “the way EPs are charting has gotten significantly sloppier.” Here are some ways EMR charting is complicating EPs’ malpractice defense:
- The EP checks the wrong box, and their own notes contradict the box they checked.
With EMRs, “it’s very easy to be inconsistent,” Cerniglia-Lowensen says. The EP’s narrative may refer to the patient’s history of cardiac problems, for instance, but a box is checked stating “no past medical history of any type of cardiovascular disease.”
“That causes problems when you are trying to defend the chart,” she says. “The EP will be asked, ‘Were you treating the patient as though you believed there was a history, or not?’”
In a recent malpractice case, inconsistency in the EMR charting became a central issue. The EP’s notes stated that crackles were heard in the patient’s lung, but the box “Breath sounds normal” was checked. The patient died from an allergic reaction to the antibiotic ordered by the EP.
“The plaintiff used the inconsistency in the record to claim there was no pneumonia; therefore, the patient’s death was caused directly by the provider ordering an unnecessary medication,” Cerniglia-Lowensen says. The case against the EP was settled.
“It is very difficult to defend sloppy charting,” Cerniglia-Lowensen adds. “It looks as though your own doctors didn’t believe in the treatment they were giving.”
- There is nothing in the EMR to explain the EP’s decision-making.
“The downside of that is when you are facing a courtroom, you won’t remember what your thought process was, and your EMR is not going to reflect that,” Cerniglia-Lowensen says.
John Davenport, MD, JD, physician risk manager of a California-based HMO, recommends EPs explain their decision-making in the chart, including the reason why certain diagnoses are not suspected.
“It’s important to put down the reason that you don’t think it’s certain things,” he says. If a patient presents with chest pain or shortness of breath and the EP determines it’s pleurisy or bronchitis, the EP can document, “I do not think it’s a pulmonary embolism” and state a reason why.
“Making some effort to show your decision-making really goes a long way to convincing somebody that you were seriously thinking about the patient and doing your best to help them,” Davenport notes.
- The patient is discharged with abnormal vital signs, and there is nothing in the EMR that says the EP was aware of it.
Cerniglia-Lowenson has defended several cases in which abnormal vital signs were clearly documented in the EMR — but not by the EP.
“It isn’t always a nurse assessing vital signs. It could be a CNA [certified nursing assistant], and they don’t bring it to the attention of anyone. But they do chart it in the EMR,” she says.
This allows the plaintiff’s attorney to convincingly argue that the EP inappropriately discharged the patient, and that the patient’s outcome would have been different if the EP had acted on the abnormal vital signs.
- The chart indicates the EP did an extensive evaluation, when it is clear that this never occurred.
“With a few short keystrokes, a note will pop up with additional information, saying that you did things that you did not do,” Davenport says.
When EPs do not edit EMR charting carefully, “that exposes you to the accusation that you are essentially lying,” he warns.
“I’ve seen this come up in several trials.” Juries will likely infer the EP is falsely charting for billing purposes.
EPs face legal risks if they allow inaccurate information to be populated in the chart, warns Jonathan E. Siff, MD, MBA, FACEP, associate chief medical informatics officer at The MetroHealth System. Siff is also assistant operations director for the Department of Emergency Medicine at MetroHealth Medical Center in Cleveland.
“An example is the patient with a history of leg amputation where the charting macro documents ‘normal dorsalis pedis and posterior tibial pulses bilaterally,’ despite the fact the patient only has one leg,” Siff says.
Davenport has reviewed several ED charts in which timestamping revealed the EP spent only a few minutes with the patient. Yet the EMR indicated an extensive examination occurred.
“We see constantly the plaintiff say, ‘The doctor wasn’t in the room with me for five minutes and he barely touched me,’ but the chart looks like a medical school history and physical,” Davenport says.
In many ED charts, a complete physical examination is documented for a patient with a minor complaint.
“It strains credibility that somebody would do a full neuro and abdominal exam if you come in with a sore throat,” Davenport notes.
During deposition, the plaintiff’s attorney asks about the care of the patient, the amount of time the EP took, and what the EP examined. Then, an expert medical reviewer compares the EP’s testimony with the ED chart. “If the expert shows that what the EP said was not true, it might not have a direct impact on the theory of the case,” Davenport says.
“Regardless, it has an effect on the credibility of the physician.”
The plaintiff attorney is trying to show the EP failed to meet the standard of care, but at the same time, is also trying to show the EP’s testimony isn’t trustworthy.
“Once a witness is found to be untruthful in one part of the testimony, the whole testimony can be disregarded,” Davenport explains. “The plaintiff attorney can ask how many patients the EP sees in a day, how long it takes to perform a neuro exam, and start adding up the time.”
The inference is that the EP is falsely claiming to have performed the examinations.
“If you get caught doing that, it affects your believability at trial. It makes it a much more difficult case to win,” Davenport notes. “With overwhelming evidence that the EP was not truthful, these cases are typically settled.”
EMR charts containing personal notes, on the other hand, can help the EP’s defense.
“These indicate actual, personal discussions with the patient and others in the room,” says Amy Evans, executive vice president in the Bellevue, WA, office of Western Litigation, a professional liability claims and risk management company.
EPs might note, for example, “Patient just returned from a shopping trip with sister and felt ill” or “Wife reports that the patient was not feeling well all week.”
To counter claims the EP spent almost no time with the patient, the EP can document detailed discussions or that he or she rechecked the patient several times.
“This indicates the physician spent good time with the patient and family,” Evans says.
- Normal findings are mistakenly entered into the chart, which don’t reflect the patient’s clinical condition.
“A template note might automatically put ‘regular sinus rhythm, no gallop heard,’ for instance, when this is clearly not the case,” Davenport says.
A patient’s ECG might show premature atrial or ventricular contractions, or a patient may present with a known history of rate-controlled atrial fibrillation, both of which would also contradict the template note.
“Sometimes, the EP just forgets to review the notes,” Davenport notes. “I’ve seen a fair number of normal findings entered into the chart that didn’t correlate to the patient.”
If EPs document something in one part of the chart that is abnormal and click an “all normal” button elsewhere, it creates an inconsistency in the chart.
“For example, the EP might document vomiting in the HPI [history of present illness], but use the ‘all normal’ button on review of systems, thereby setting GI to ‘normal,’ despite having documented the presence of vomiting elsewhere,” Siff explains.
If the EMR includes a long list of physical findings that are listed as “normal” by default, the onus is on the EP to correct any findings that were inadvertently listed as normal.
“To leave that in there is not good for the EP,” Davenport warns. “It exposes the EP to allegations that he was careless in his charting or even lying.”
Examinations that were inaccurately documented don’t have to affect the patient’s outcome to harm the EP’s defense.
“If a chest pain patient sues for misdiagnosis of myocardial infarction [MI], and you’ve got a neuro exam stuck in there, it’s not really pertinent to the case,” Davenport says.
Whether the EP actually performed the neurological exam makes no difference to the patient’s outcome.
“But if you can prove the EP didn’t do it, that affects the EP’s credibility,” Davenport adds. The judge or jury will be asked to believe that the EP was untruthful in the chart, but is truthful in all of his or her other testimony.
“The defense is left to argue, ‘My client is guilty of careless charting,’” Davenport continues. “That is a hard defense when you have to rely on that.”
- To save time, the EP completes the template in advance, with the intention of correcting it based on what is found during the examination.
“This is a poisonous practice,” Davenport says. In one malpractice case, the EMR time-stamping showed the patient was actually at the nursing station at the time the EP was documenting a physical exam. “The EP is claiming to have done a full physical on a patient who was still having their vital signs checked by a nurse,” Davenport says. “That does not look good for the EP.”
- Nursing EMR charting conflicts with the EP’s.
Some EMRs make it difficult for EPs to view the nursing documentation.
“But having a clunky chart doesn’t excuse you,” Davenport warns. “It’s not enough to say, ‘This chart is not designed well and I had to go through three or four steps to find it.’”
The plaintiff attorney will likely take full advantage of the fact the EP failed to review the nursing notes.
“The EP will be asked, ‘So you didn’t have an extra 45 seconds to look at that nursing note and prevent the patient from having an MI?’” Davenport explains.
The EP must note any discrepancy in the chart, and clarify that the patient’s condition changed between exams, Evans advises. In one case Evans reviewed, the ED nurse noted guarding, rebound, and tenderness, yet the EP indicated the abdominal exam was benign.
“The patient went on to experience a ruptured appendix with abscess, and sued the doctor for failure to diagnose,” Evans says.
The defense tried to argue that the symptoms noted by the nurses had resolved by the time the EP examined the patient. “But the patient testified that our EP spent no time with her and did not examine her abdomen,” Evans notes. “The jury believed the patient, because her testimony was consistent with the nurses’ notes.”
• Time stamping shows that something happened at a substantially different time than the EP documented, that the EP spent minimal time with the patient, or that the EP altered the documentation.
“Clearly identify any modifications to the chart as late entry or addendums to prevent the appearance of trying to ‘change history,’” Siff advises.
- Joan Cerniglia-Lowensen, JD, Pessin Katz Law, Towson, MD. Phone: (410) 339-6753. E-mail: [email protected]
- John Davenport, MD, JD, Irvine, CA. Phone: (714) 615-4541. E-mail: [email protected]
- Amy Evans, Executive Vice President, Western Litigation, Bellevue, WA. Phone: (425) 586-1045. Fax: (713) 461-8130. E-mail: [email protected]
- Jonathan E. Siff, MD, MBA, FACEP, Associate Chief Medical Informatics Officer/Assistant Operations Director, Department of Emergency Medicine, MetroHealth Medical Center, Cleveland. Phone: (216) 778-7907. E-mail: [email protected]
Otherwise defensible claims against EPs are being settled.
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