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By relying on scribes to document, EPs presumably can spend more time focusing on the patient and include more detailed documentation in the ED chart. On the other hand, scribes can potentially increase legal exposure for EPs. One obvious concern involves accuracy.
“I have heard from emergency physician colleagues that consistency of documentation is highly dependent on the individual scribe and physician and their relationship,” says P. Divya Parikh, vice president of research and risk management for the Rockville, MD-based Medical Professional Liability Association.
In essence, scribes replace one problem with another. “It’s inherently a balancing act. But most EPs find that, on balance, practice is better with them than without them,” Parikh adds. Inadequate training, poor supervision or oversight, and use of the scribe beyond his or her role and scope of responsibilities are the biggest legal risks with scribes in the ED setting, according to Denise Shope, RN, risk management consultant at RCM&D, a Towson, MD-based insurance advisory firm. “The ED clinician is ultimately responsible for the care of the patient and accuracy and integrity of the medical record documentation,” Shope says. This includes the documentation entered by a scribe. Potential errors include sound-alike words, especially with medications; confusion about laterality (left vs. right) or numeric values, such as 10.8 vs. 0.8.
A complete and accurate record of the ED patient’s medical history and current plan of care “mitigates the potential for miscommunication and error,” Shope says. “But I don’t think we have clear evidence yet that there is a direct correlation with the use of scribes and the reduction of litigation.” Shope shares some practices that could limit risk and liability for EDs. She says these practices should be included in the hospital’s written policies:
“The scribe is only entering the provider’s words for them and not inserting their own comments or judgments into the record,” Shope notes.
Shope says the scribe’s clinical training should include hospital policies and regulations on confidentiality and privacy. “ED scribe documentation should be managed with the same quality assurance expectations of any other patient documentation,” she adds. Scribes can present an additional hurdle for the ED defense team: It’s one more way for the plaintiff attorney to place the quality of ED documentation into question.
“The use of scribes is ripe for attack in the litigation scenario. It invariably introduces a further opportunity of what we call failure to communicate,” says Kevin J. Kuhn, JD, a partner at Wheeler Trigg O’Donnell in Denver.
Scribes may even find themselves named as witnesses in a malpractice case against the EP. The plaintiff attorney may ask questions like, “The EP testified he told the patient to go see his primary care physician tomorrow. Did you hear him say that? If you did hear him say that, would you have made a note?”
“Then, they throw the scribe back in the physician’s face to say, ‘Well, the scribe doesn’t remember you saying anything like that,’” Kuhn reports.
In this way, the scribe is used to challenge both the credibility of the EP and the accuracy of the ED chart. The best-case scenario from the defense perspective, according to Kuhn, is for EPs to handle their own documentation. “Then, I know it’s accurate, and he or she is the one who entered it.”
Involvement of scribes opens the door to suggestions that the ED record can’t really be trusted, with differing recollections coming into play. This complicates the defense of any ED malpractice claim.
“I call it the multiplier of confusion,” Kuhn explains. He acknowledges that scribes can help with patient throughput, and that some EPs feel they are legally protective because it allows the EP to spend more time on medical decision-making. However, the defense team’s mission is to protect EP defendants from allegations that they failed to meet the standard of care.
“Frequently, I have to rely on documentation to carry out that mission,” Kuhn notes. “My best source of defending a case is from the emergency medicine physician, not diluted through a scribe charting.”
EDs may say or do something the scribe doesn’t observe directly, such as giving discharge advice, answering a patient’s question, or reminding a family member of the need for follow-up. This won’t be entered into the record, since the scribe is unaware of it.
“That distorts the advice that was given and also the compassion that was shown to the patient,” Kuhn notes.
It’s also not unheard of for an EP to ask the scribe to tell a patient something or remind them of discharge instructions.
“A physician may say, ‘I would never do that,’ but in a busy ED, it’s possible,” Kuhn predicts. “This could open the door to a negligent training allegation.”
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), Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), and Terrey L. Hatcher (Editorial Group Manager).