Legal Implications for ED if Scribes Used for Documentation
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:
- Scribes accompany the attending provider into the exam room and enter information in real time;
- The scribe remains with the provider during the entire visit, except in an emergency (if the provider asks the scribe to leave), or at the patient’s request (for privacy reasons);
- All entries made by a scribe regarding a patient’s health information are completed in the presence and at direction of EP;
- Scribes are responsible for capturing an accurate and detailed description of the ED patient encounter in the provider’s words;
- Scribes may not interject their own observations or impressions into the medical record;
- Scribes may assist the provider in navigating the EMR and locating test or lab results for review during the patient visit;
- Staff cannot ask scribes to leave the room to perform other duties (such as running errands or assisting with procedures) that would take scribes away from their scribing duties;
- The scribe brings to the provider’s attention any advisories or alerts that appear on the EHR screen and records the provider’s response as appropriate;
- All orders for patient care are communicated by the provider, not the scribe;
- Scribes use their own unique login to perform their scribe duties;
- Scribes document the words, actions, physical exam findings, and procedures as performed and dictated by the provider.
“The scribe is only entering the provider’s words for them and not inserting their own comments or judgments into the record,” Shope notes.
- The scribe must attest in the medical record that he or she acted as the scribe for the provider using the following statement: “I acted as a scribe of the services personally performed by the clinician, and the medical note documents those services and medical decisions made by the clinician and recorded by me as a scribe.”
- The provider must attest to using a scribe using the following statement: “I have personally performed the services documented here and agree that the documentation accurately represents the services and medical decisions I made. I have reviewed the documentation and made changes or additions as needed. The encounter was documented by the clinic staff acting as my scribe.”
- At the conclusion of the patient visit, as soon as reasonably possible, the provider reviews all documentation completed by the scribe, makes any necessary amendments, and signs and dates the record.
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.”
- Kevin J. Kuhn, JD, Partner, Wheeler Trigg O’Donnell, Denver. Phone: (303) 244-1841. Email: [email protected].
- P. Divya Parikh, Vice President, Research & Risk Management, Medical Professional Liability Association, Rockville, MD. Phone: (301) 947-9000. Email: [email protected].
- Denise Shope, RN, Risk Management Consultant, RCM&D, Towson, MD. Phone: (443) 421-5053. Email: [email protected].
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.
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