Electronic medical records (EMRs) can complicate medical records and create false impressions in a malpractice case. Autofill and the inability to edit notes can cause unexpected problems.

  • Records can become cumbersome when too much information is carried forward at each visit.
  • Clinicians may enter multiple notes because they cannot edit.
  • Cases may be settled when EMR provides a misleading picture.

As useful as electronic medical records (EMRs) can be and as much as they can improve patient safety, they also can pose significant liability risks if they inadvertently introduce errors or make the record difficult to understand, medical malpractice attorneys caution.

Some of the features meant to make recordkeeping faster and easier actually introduce errors and muddle the facts, says David Richman, JD, partner with the law firm of Rivkin Radler in Uniondale, NY. He currently is working with a pain management group that was an early adopter of EMRs six years ago, and the earlier versions of the software had significant bugs that affected how clinicians filled out fields and responded to prompts for information, he says.

The latest versions of the software has been improved, but he says EMRs still create problems that might not have existed with paper records.

“We’re still seeing it, and it’s a pain for the providers and it’s a pain for us in defending them,” he says. “Even in the slightly more advanced state of today, the software is still not user friendly. I just met with a doctor two days ago discussing a malpractice case, and because of the EMR the chart has become almost unreadable.”

Richman says he has seen the same problem with various EMR software packages. The problem, he explains, is that the clinician fills in the fields on a first patient visit, and on each subsequent visit the EMR autofills those fields with the same information. That may save time and effort with information that does not change often, like a patient’s phone number or address, but it wreaks havoc when applied to important clinical information.

Data can be carried forth so much that the record becomes practically unreadable, he says.

“It will cut-and-paste the entire first note into the box for the second day’s note. So, then you write the second day’s note under that, and it carries forth all of that to the box for the third day’s note,” Richman says. “By day three or four, you cannot find what you are looking for because there are blocks of text just repeated over and over. Instead of picking up a doctor’s traditional handwritten note where there’s a date and a single entry, now doctors will spend several minutes trying to find their own notes in all that repeated information. That can’t be good for medical care, and it’s certainly not good when an attorney is trying to read it and figure out what happened.”

Multiple Notes Needed Sometimes

EMR software also can inadvertently give the impression that a clinician was improperly tampering with or trying to alter the medical record, Richman says. Most EMRs lock down a note once it is entered, preventing the author from correcting any mistakes or omissions once it is submitted. That is meant to prevent improper alteration of notes, but then the clinician’s only recourse is to enter an additional note.

“I’ve had records pulled for cases where the doctor has multiple versions of the same note in the file, because they reflect some change in the physician’s thinking or an update in the facts as treatment goes along. I’ve had cases with nine or 10 versions of the same note, and those cases had to be settled, even if you can explain each version of the note and why it was entered,” he says. “The more something has to be explained, the bigger problem you have. You’re no longer explaining the facts of the medical care and you’re trying to explain away what looks at first glance like the doctor was trying to cover his tracks. Those cases are settled purely because of the software and not because of the treatment rendered.”

Other problems can arise if the EMR limits how much information can be entered in a field, he says. It is difficult for a physician to explain that he or she wanted to include more detail about a patient’s condition and care, but was limited to a certain number of characters, Richman says.

An example of how EMRs affected a case of a baby with brain damage comes from Monte James, JD, partner with the law firm of Jackson Walker in Austin, TX. The principal allegation was that the OB/GYN miscalculated the initial due date. That OB/GYN’s medical record was sent to the hospital, and the alleged incorrect due date was entered in the hospital records. The mother was thereafter admitted several times to the hospital and discharged after it was determined that she was not in labor.

For each new admission, the medical record created for that admission would auto-populate the alleged incorrect due date. The plaintiff alleged that this caused the nursing staff at the hospital to rely on an incorrect due date, and therefore fail to take appropriate action that would have otherwise been taken had the correct due date been used.

“Do not allow auto-populate features to re-input critical tests, margins, and other values such as a due date, where such results can have significant impact on the future diagnoses, care, or treatment of a patient,” James says.


  • Monte James, Partner, Jackson Walker, Austin, TX. Telephone: (512) 236-2066. Email: mjames@jw.com.
  • David Richman, JD, Partner, Rivkin Radler, Uniondale, NY. Telephone: (516) 357-3120.