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When a patient presented at an ED with severe leg pain and swelling, the EP clicked on a fever template in the electronic medical record (EMR), even though she knew the patient did not have a fever.
“This choice led to templates that were not relevant to the patient’s clinical condition. Ultimately, it resulted in the patient being misdiagnosed,” says Donna Vanderpool, MBA, JD, vice president of risk management at Arlington, VA-based Professional Risk Management Services.
The discharge diagnosis was viral gastroenteritis. The next day, the patient died at a different hospital of necrotizing fasciitis. “The case appears to have settled during trial,” Vanderpool says.1
At her deposition, the EP explained that she had no option regarding the use of a template. She explained: “You have to choose a template. By that choice, a screen pops up and provides the doctors with other options or choices to make.”
When the ED chart is reviewed during litigation, the chosen templates can give a misleading picture of what really happened. “They may not fit the actual patient,” Vanderpool says. “For example, the mental status exam of a child will be different from that of an adult.”
Kimberly K. Bocell, JD, an attorney and shareholder at Chamblee Ryan in Dallas, is aware of multiple cases in which EMR charting with drop-down menus has wreaked havoc on the defense of ED malpractice claims.
“The problem is that people are not black-and-white boxes. Symptoms aren’t always so neatly categorized,” she says. A patient who initially reports chest pain might later complain of difficulty breathing, but the EP has already gone down the chest pain decision tree pathway. “It’s so problematic that it can almost limit the EP’s ability to accurately document,” Bocell says.
EPs find themselves checking something that, while not exactly accurate, is the closest thing the drop-down menu offers. “In hindsight, you are now in a situation where you have to explain that you chose a box because it most closely fit the patient’s situation,” Bocell says.
This makes for an ED record that’s somewhat inaccurate. “It takes away the EP’s independent ability to pick and choose the words they want to use,” Bocell explains. “That somewhat limits the ability to fully reflect the care provided.” She urges EPs to take full advantage of free text options within EMRs to explain their decision-making more fully.
Here are two allegations that are included commonly in ED malpractice litigation:
Michael B. Weinstock, MD, says, “It’s a tremendous amount of data. There often are hours’ worth of material — obviously beyond the time available during a busy ED shift.”
Plaintiff attorneys comb through the voluminous record to find anything that conceivably could have prevented the ED patient’s harm. For instance, the EMR might contain a years-old evaluation by a specialist documenting information that would have changed the EP’s management of the patient in some way. If the EP missed the diagnosis of pulmonary fibrosis, the EMR might reveal that the patient had been given amiodarone, which may increase the chance for this uncommon but serious disease.
“You may have multiple records from multiple different specialists available with the EMR. You can bet if there’s a bad outcome, the plaintiff attorney will say, ‘If you had only seen that,’” says Weinstock. associate program director of Adena Health System’s emergency medicine residency and adjunct professor of emergency medicine at The Ohio State University.
During the discovery phase of litigation, EPs sometimes find their own documentation is difficult to decipher. One reason is that the written format of the EMR looks very different from what the EP saw on the screen.
When the EMR documentation is produced for discovery, Bocell says “it is not visually friendly. Many clients say, ‘That’s not what it looks like when I view it.’ That’s problematic.”
Weinstock says one problem is that EMRs often are used “out of the box” by ED groups. For instance, the ED nursing documentation might require too many clicks to get to, causing EPs to overlook important pieces of information continually. “There are ways to get the nursing notes to roll into the EP’s note so they see it every time,” Weinstock says.
Weinstock says EPs faced with countless checkboxes can improve care, and protect themselves legally, by incorporating a “hard stop” into their medical decision-making. EPs can ask these two questions: “Would I feel comfortable explaining my evaluation in a courtroom, or to a parent, child, spouse, or friend?” and “Does my evaluation make sense in the context of the patient’s presentation and the data gathering I’ve performed?”
“One nice thing about EMRs is you can see your chart in real time,” Weinstock says. “Make an assessment about whether the evaluation performed was accurate, truthful, and logical.”
During peer review of ED cases, Weinstock notes that someone in the room usually figures out what went wrong and what should have been done with the patient. “Instead of waiting for the conference when your peer is going to tell you how you screwed up, why don’t we prospectively do that while the patient is still in the ED in front of us?” he asks.
If the decision-making in the EMR doesn’t make sense, or if there are unaddressed abnormalities, the EP can obtain more testing or admit the patient. Weinstock asks: “Why wait until the next day when the patient bounces back to the ED?”
Vanderpool is seeing a “slow increase” in EMR documentation coming up in medical malpractice litigation. “In several reported cases, the EHR is alleged to have caused, or at least contributed to, patient harm,” she notes.
Bocell says plaintiff attorneys often raise issues with EMR documentation that are “just a red herring. The EP then has to get up and defuse that issue by explaining, ‘We have problems with our EMR, and here’s what I really did.’”
Such testimony switches the jury’s focus from the good care the EP provided to problems with the EMR. “Poor documentation is something that tends to bother jurors,” Bocell adds.
Otherwise defensible ED cases might end up settled or lost at trial because of this confusion. “In talking to your EP, you know that everything they did was appropriate, but the EMR just doesn’t reflect that,” Bocell says. “Now, their testimony is what makes or breaks their case.”
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Author); Jonathan Springston (Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).