EXECUTIVE SUMMARY

Electronic health records (EHRs) can be used against you in court. The record may provide evidence contrary to what the defendant claims.

• EHRs can record where, not just when, an entry was made.

• Locked notes can create confusion with added information.

• Timing data can both help and hurt a case.


Electronic health records (EHRs) are a godsend for physicians and hospitals when they know they are in the right and only need a way to prove it. But healthcare providers also are finding that EHRs can sink the defense when it provides unexpected or contradictory evidence.

One issue that risk managers have noticed recently is that EHRs record not only when an entry was made in the patient chart — which everyone is aware of and wouldn’t try to fake — but also where the entry was made. For instance, the EHR may reveal that the clinician was not at the bedside when the entry was made, as claimed, but at another workstation.

EHRs can hurt the defense in a number of ways, says David Richman, JD, partner with the law firm of Rivkin Radler in Uniondale, NY. He has seen a number of cases in which a doctor’s defense was compromised by an EHR, but it is more often the result of the software package being used in the doctor’s office than any wrongdoing on the doctor’s part.

Richman notes that several years ago, when EHRs were becoming more prevalent in physicians’ offices, the software would lock the notes once they were created. Consequently, if a doctor wanted to make a change, he or she would have to create a new note. More times than not, the second note was not an exact recreation of the earlier note, but instead added or omitted information.

“Because the software did not allow the user to state that this was an amendment to an earlier note, it appeared as though two or more notes were created for the same visit. The discrepancies provided plaintiff’s counsel with ample material for cross-examination,” Richman says. “In one early case, the doctor wound up creating seven notes for the same visit, none of which matched up, making the case very difficult to defend.”

Another software-related pitfall that Richman and his colleagues continue to see with some regularity involves notes carrying forward from one office visit to the next.

“This is likely a function of user error or misuse, and perhaps driven by insurance company requirements. Too many times, the note is simply carried forward without any alteration despite the fact that the patient was seen and examined, and new findings were made,” he says. “The failure to document those new findings makes it appear that nothing took place at the visit despite clear indications to the contrary, such as lab work or radiology reports.”

An EHR can be a blessing or a curse when defending a medical negligence case, says Dennis Harms, JD, shareholder with the law firm of Sandberg Phoenix in St. Louis. Information contained in the EHR, but not included in the legal medical record, adds depth to key evidence in the case.

However, the clinician’s access to the EHR makes him or her responsible for knowing all the information included there.

“The EHR potentially demonstrates that provider’s knowledge of any data contained in the EHR at that time. Thus, if the timing of an intervention, such as a medication order, is an issue in the case, then plaintiff’s counsel can preclude, to some extent, a defense based on a lack of information necessary to require that intervention,” Harms says.

On the other hand, defense counsel can use the same timing data to demonstrate that the provider acted immediately when presented with critical data. Such immediacy can support a defense that even the best of care was insufficient to prevent an adverse event, he says.

“The worst-case scenario occurs when the EHR demonstrates that the provider altered the record to make events appear more favorable in the event of litigation,” Harms says. “In these cases, defense counsel are faced with spoliation and punitive damage claims in addition to those already present in complex medical negligence litigation.”

SOURCES

• Dennis Harms, JD, Shareholder, Sandberg Phoenix, St. Louis. Phone: (314) 446-4252. Email: dharms@sandbergphoenix.com.

• David Richman, JD, Partner, Rivkin Radler, Uniondale, NY. Phone: (516) 357-3120. Email: david.richman@rivkin.com.