With multiple providers documenting in the ED medical record, there are bound to be some discrepancies from time to time. Not everyone is going to agree on how the patient looked, what the family stated, or on overall clinical impressions. “However, the chart must reflect that discrepancies were recognized and considered by the ED provider,” says Amy Evans, JD, executive vice president of business development and liability claims division at Intercare Insurance Services in Bellevue, WA.

When confronted with a discrepancy at deposition, most ED providers testify that they did see the entry, Evans says. Often, the conflict is between something the EP charted and something an ED nurse charted. “The ED provider explains the discrepancy by saying that the patient’s condition changed after the nurse examined them,” Evans notes.

The problem is that this change in condition is not noted anywhere in the ED chart. “The biggest problem for ED providers is the lack of charted acknowledgment of the discrepancy,” Evans says.

A brief note on this point is all that is needed. For instance, if nursing notes significant abdominal pain (8 on a scale of 1 to 10, but it is completely resolved since then), the ED provider is going to chart a pain score of zero. The EP can document “Pain decreased to 0/10 since triage.”

“That indicates that the provider saw the 8/10 score,” Evans suggests.

There is no way around it — any discrepancies in the ED chart are a problem for the defense. “It’s one of the easiest ways for a plaintiff’s attorney to poke holes in the credibility of the hospital,” says Kenneth N. Rashbaum, JD, a partner at New York City-based Barton.

Rashbaum has seen inconsistent charting on just about every aspect of the ED evaluation. Defendants in malpractice claims have charted conflicting entries on the medications taken by the patient, substance abuse history, illness history, and physical exam findings such as stiff neck or drooping eyelids. “I have seen all of these become points for cross examination because the ED notes were inconsistent with those entered on the floor,” Rashbaum reports.

Inconsistent notes sometimes happen because one ED provider fails to review another’s notes. It also can happen because of a good faith difference of opinion. However, the plaintiff attorney can make it look as though the rushed, careless ED provider confused the patient with someone else. If an ED nurse stated the patient was in severe pain, and the EP says the patient was pain-free, it is easy for jurors to believe an overwhelmed EP was mixed up while caring for multiple high-acuity patients. “The record is the foundation of the defense,” Rashbaum stresses. “If doubt is cast upon the accuracy of the record, the entire house of the defense can collapse.”

In the days of paper medical records, ED providers often did not make entries until after the patient had left the ED for the inpatient floors. This was sometimes hours or days later. “The floor clinicians created a record without input from, and sometimes contrary to, the history, physical, and impression findings of the emergency clinician,” Rashbaum recalls.

In theory, at least, EMRs should have stopped this from happening. Inpatient clinicians now can read the notes of ED providers before documenting. But this takes time, which is scarce on both the ED and inpatient floors. “Failing to find that time can do more than damage the defense of a lawsuit,” Rashbaum warns. “It can compromise the patient’s care.”