Address EMR practices before suit occurs — It’s an ‘evolving area of risk exposure’

Physicians are becoming increasingly aware that in many cases, electronic medical record (EMR) documentation creates legal risks that didn’t exist with paper charting.

“EMR is an evolving area of risk exposure,” says Richard E. Moses, DO, JD, a Philadelphia-based gastroenterologist, risk management and compliance consultant, and adjunct assistant clinical professor at the Temple University schools of medicine and law. “As more healthcare providers move to EMR charting, we are going to see new areas of risk and theories of liability emerging.” For example, copying and pasting portions of a progress note has the potential to carry an error throughout the patient’s chart and medical record.

Current EMRs are not designed as physician workflow tools, but as a data repository tool that evolved from hospital billing systems, according to Luke Sato, MD, chief medical officer and senior vice president of CRICO, the Cambridge-MA based patient safety and medical professional liability company serving the Harvard medical community. “Doctors are overwhelmed with information, time constraints, and the pressures of seeing 20 to 30 patients a day,” says Sato. “The result is a huge potential risk that, in the average eight-minute patient/physician encounter, something is bound to be missed.”

EMRs increase this risk to some extent, says Sato, because doctors have to comb through the EMR to search for information needed to care for their patients.

CRICO’s recent analysis of more than 40 claims occurring in 2007-2012 involving an EMR found that many involved missed and delayed diagnosis by a primary care physician. “Information overload contributes to [these claims],” says Sato. “These cases are expensive to defend and result in a higher average indemnity.”

Defense is complicated

EMRs often complicate a physician’s defense against medical malpractice allegations, according to CRICO’s claims analysis. When a physician is sued, the insurer receives a printout of the entire medical record, but this record is a poor representation of the actual information the doctor used to make a decision, Sato explains.

“You can’t make judgments on the physicians’ cognitive or decision-making capabilities, because the paper record is not an accurate representation of how that information was seen by the physician in the EMR,” says Sato. “That is the biggest challenge right now in defending physicians dealing with errors related to today’s EMRs.”

EHRs can hinder physician defendants from demonstrating that the standard of care was met, says Ron Sterling, CPA, president of Sterling Solutions, a Silver Spring, MD-based firm that guides medical practices in the use of technology, and author of Keys to EMR/EHR Success (Greenbranch Publishing; Phoenix, MD; second edition, 2010). “Unfortunately, inadequate use of EHRs can undermine the ability of the physician to show that proper care was provided,” he says. “The biggest risk is that that information entered in the system will tell a story different from the physician’s actions, when the computer records are examined in the course of discovery.”

Physicians have to take a carefully planned approach to EHR use, argues Sterling. “Indeed, they literally need to make sure that their charts are properly maintained on a daily basis,” he says. Consider these practices to reduce legal risks involving EMRs:

• Validate, correct, or update data automatically filled by the system when using templates.

“If the data is not validated or updated consistently, the result can be a series of encounters that appear to be exactly the same,” says Kathy Ferris, ARM, CPHRM, a healthcare risk management consultant at Physicians Insurance in Seattle. When the chart is reviewed, it might appear as though the physician or practice didn’t pay attention to the patient and cared more about administrative efficiency than the individual patient. “This can contribute to clinical decision-making based on bad information and may also call into question whether or not the care being billed for is appropriate.”

• Don’t assume previous providers validated the patient’s history.

Electronic information can be easily copied from one record to another or from one encounter to another, but this step creates a risk of copying incorrect information that might be used for future clinical decision-making, says Ferris.

In a recent case reviewed by Ferris, multiple providers cared for a single patient, and each allowed the history information to autofill without adequately reviewing it with the patient. “Significant inaccuracies were contained in the history because one provider, trying to be efficient, had copied history from a different patient record and failed to make patient-specific changes,” says Ferris. “Fortunately, the patient had not suffered a medical injury caused by the inaccurate information.”

• Use free-text entry in addition to system tools.

“This can strengthen documentation of the history of the physician-patient partnership that defines quality care,” says Ferris.

If physicians rely too heavily on templates and preformatted lists, discussions and clinical details unique to individual patients might become lost. “Free text entry in available fields or notes can document clinical decision-making more clearly than a time stamp followed by a preformatted order,” she underscores.

• Be sure that use of drop-down menus, default information, macros, and templates don’t lead you to inadvertently document interventions that weren’t performed.

“The philosophy has changed from ‘If it’s not documented, you didn’t do it,” to ‘You documented it, but did you do it?’” says Moses.

Use of prepopulated templates can create inaccuracies in the record, such as failing to document certain abnormalities, documentation of abnormalities that do not exist, or creating conflicts between different entries, he warns.

Providers need to read the chart after it’s created and make any corrections as appropriate, advises Moses.

“Providers don’t always read what they’ve typed, dictated, or clicked on,” he says. “Ultimately, you are responsible for that note.” (See related story, below, on how fraud is coming up in medical malpractice cases.)

Sources/Resource

Kathy Ferris, ARM, CPHRM, Physicians Insurance, Seattle. Phone: (800) 962-1399. Fax: (206) 343-7100. Email: kathys@phyins.com.

Richard E. Moses, DO, JD, Philadelphia. Phone: (215) 742-9900 Ext. 253. Fax: (215) 742-7051. Email: remoses@mosesmedlaw.com.

Ron Sterling, CPA, Sterling Solutions, Silver Spring, MD. Phone: (301) 681-4247. Email: rbsterling@sterling-solutions.com.

CRICO, the patient safety and medical professional liability company serving the Harvard medical community, has produced a video on how electronic medical records can be embedded into the physician workflow in a manner that would improve healthcare, with a dramatization based on real malpractice cases. To view the video, go to: www.rmf.harvard.edu/EMR.

Medical malpractice cases: Crossover with fraud

After an investigation by the Department of Health and Human Services’ Office of Inspector General (OIG) concluded that a Maryland interventional cardiologist allegedly placed hundreds of medically unnecessary coronary artery stents, a flood of medical malpractice litigation quickly followed.

“The health fraud allegations prompted advertising by plaintiff attorneys, resulting in hundreds of malpractice lawsuits,” says Richard E. Moses, DO, JD, a Philadelphia-based gastroenterologist, risk management, and compliance consultant, and adjunct assistant clinical professor at the Temple University schools of medicine and law.

More cases will arise involving the crossover of medical malpractice and healthcare fraud, he predicts, due to the OIG making the over-utilization of services submitted for payment an enforcement priority for 2013. (To view the OIG’s 2013 work plan, go to http://1.usa.gov/PatqZX.) “The government has also noticed a trend in upcoding due to electronic health record coding engines creating the level of care rendered,” says Moses. “Just because a level of care is documented does not mean that that level of service was provided.”

Moses relates that in his own documentation, he chooses to free text instead of using a drop-down menu or fixed templates. He then determines the appropriate evaluation and management (E&M) code for the level of care provided for that service. He has switched the coding engine option “off.”

Providers should review the electronic record that they created for the patient’s visit. The level of care and associated documentation provided should drive the appropriate E&M code, as is done with paper charting, rather than accepting the code recommended by the coding engine, says Moses. When providers finalize the progress note, they are attesting that the level of care to be billed is honest and appropriate, he adds.

“Coding engines tend to be created in order to maximize reimbursement,” he explains. “Providers should submit the appropriate E&M code based on what they did, rather than what the coding engine tells them.”