EXECUTIVE SUMMARY

Malpractice cases may become indefensible if the forensic IT expert can prove the ED chart was altered in some way.

  • Data regarding physical examination or history can appear self-serving.
  • The veracity of altered information will be questioned.
  • Even if the EP’s motive was valid, it may appear otherwise.

After a malpractice lawsuit was filed against a physician assistant (PA), the plaintiff’s IT expert discovered some damaging evidence. It turned out that the defendant altered the original information input into the ED chart three days after a patient’s bad outcome occurred.

“We could tell when he was in the chart and exactly what he did,” says John Tafuri, MD, FAAEM, regional director of emergency medicine at Cleveland (OH) Clinic and chief of staff at Fairview Hospital. The case quickly became indefensible.

Increasingly, electronic medical record (EMR) time-stamps are used against defendant EPs. “One thing that plaintiff’s lawyers are now doing is attempting to get the information that shows when data was entered into the electronic chart,” says Jill M. Steinberg, JD, a shareholder at Baker Donelson in Memphis, TN.

Often, late entries are entered for legitimate reasons. If a patient suddenly deteriorates or codes, EPs enter data on the physical examination or history later. “But plaintiff’s counsel will argue that anything that is helpful to the defense was put in the medical record after knowing the outcome, and is self-serving,” Steinberg warns. The plaintiff’s counsel will aggressively attack the veracity of the newly added information. “They will try to make it look like the hospital or doctor is hiding something,” Steinberg adds.

Cover-up Implied

Some plaintiff attorneys are hiring forensic IT experts to prove the ED chart was altered in some way. “If a provider goes back into a chart to make changes, and the care at issue results in litigation, those changes will not go unnoticed,” warns Katharine C. Koob, JD, an associate at Post & Schell in Philadelphia.

Audit trails, now routinely requested by plaintiffs, identify each and every time the EMR is accessed. If this reveals any changes made by ED providers, the plaintiff’s counsel will allege something was covered up.

“Even if the motive behind the changes was valid, the circumstances may suggest otherwise,” Koob says. Any documentation added after a patient’s bad outcome becomes fodder for a brutal cross-examination of the EP, who will be depicted as covering up negligence. Thus, Koob advises, “it is critical to avoid alteration to the records, and to mark any additions to the chart as addendums.”

Laurette Salzman, senior risk resource advisor for ProAssurance in Madison, WI, gives the example of an ED patient presenting with signs of a stroke. “Timing of orders and decisions to administer thrombolytics would be closely examined, if the patient does not fully recover.”

For instance, the EP might document: “Patient given tPA. Partial improvement in arm movement noted.” The timing of such documentation becomes important during malpractice litigation.

“If not recorded in a timely fashion, this entry may conflict with hourly neuro checks that reveal the patient’s symptoms were progressively worsening,” Salzman explains.

Another common example: A patient who is transferred or in surgery by the time the EP signs off on lab tests and makes additional comments into the record. “On occasion, a physician may need to make an addendum or addition to the record to add inadvertently omitted but pertinent information, correct an inaccuracy, or clarify a previous record,” Salzman says.

In this case, the ED chart should reflect:

  • the current date and time;
  • a reference to the entry as a “late entry” or “addendum” to the prior record.

“Never make an addendum or addition to a medical record after a claim or lawsuit has been filed, or after receiving notice that a claim or lawsuit might be filed,” Salzman warns.

A possible proactive strategy is for EPs to outline special circumstances that could account for late entries, such as multi-vehicle accidents or disasters. “This may support the reason for non-contemporaneous medical record entries,” Salzman adds.

‘Before and After’ Screens

Late EMR entries are inevitable in the ED, where a patient’s status can change quickly and drastically. Despite their part in everyday practice, late EMR entries often are introduced as exhibits at trial.

“Plaintiff attorneys love to use this reality of practicing in the ED setting to argue that the late or amended entry is evidence of the defendant’s knowledge of wrongdoing,” says Megan Kures, JD, a senior attorney in the Boston office of Hamel Marcin Dunn Reardon & Shea.

The EMR’s electronic footprint revealing what specifically was edited or added makes for a compelling visual. “I have seen plaintiff’s lawyers put enlarged copies of the ‘before’ and ‘after’ notes up on screens for juries side by side,” Kures recalls.

It’s easy for jurors to imagine the EP was covering up a mistake, given the fact that the patient experienced an adverse or unexpected outcome. However, late entries sometimes are worth the trouble they cause.

“Providers should not leave something undocumented or unedited for fear of how it might look in litigation,” Kures says. An amended EMR entry bolstered the defense in a recent ED malpractice claim involving a prolonged resuscitation. The EP had accompanied the patient to surgery, returning to the ED hours later.

“She did not write her note until well into the following day,” Kures says. “The text that appeared in the final note was definitely helpful to the defense.”

The newly added documentation laid out a detailed timeline. It described how the patient appeared during examination, and how the patient responded to interventions that occurred prior to the code. Not surprisingly, plaintiff’s counsel argued that the EP added these details after the code event in an attempt to obscure her own negligence.

“The plaintiff’s counsel put into evidence the version of the note as it existed prior to the code, which contained very little information in comparison to the final note,” Kures says. The implication: The final note contained fabricated details to make it appear the patient was more stable than she actually was.

“It became an issue of credibility,” Kures adds. The EP’s believability, combined with a valid reason why the note was not finalized prior to the code, worked in the defense’s favor.

“The explanation was bolstered by explaining the overall ED environment, where patient care has to come before note writing,” Kures says. The jury was asked to consider the realities of ED care. The defense explained in detail that EPs may well be interrupted many times in the course of completing a note, especially on a complex patient. Therefore, in this particular case, the amended EMR entry ended up helping the defense.

“This might not always be the case,” Kures cautions. “And where there is not a good explanation, you can bet a plaintiff’s lawyer is going to try and exploit the situation.”

SOURCES

  • Katharine C. Koob, Associate, Post & Schell, Philadelphia. Phone: (215) 587-1020. Fax: (215) 320-4787. Email: KKoob@PostSchell.com.
  • Megan Kures, JD, Senior Attorney, Hamel Marcin Dunn Reardon & Shea, Boston. Phone: (617) 482-0007. Email: MKures@hmdrslaw.com.
  • Laurette Salzman, Senior Risk Resource Advisor, ProAssurance, Madison, WI. Phone: (800) 282-6242, ext. 8304. Email: lsalzman@proassurance.com.
  • Jill M. Steinberg, JD, Shareholder, Baker Donelson, Memphis, TN. Phone: (901) 577-2234. Fax: (901) 577-0776. Email: jsteinberg@bakerdonelson.com.
  • John Tafuri, MD, FAAEM, Chairman, Regional Emergency Medicine, Cleveland (OH) Clinic. Phone: (216) 476-7312. Email: jotafu@ccf.org.