EMR Charting: A Solid Defense for Sued EP?
Plaintiffs can’t argue with time-stamped entries
Time-stamped entries or other information in the electronic medical record (EMR) can sometimes make cases indefensible for emergency physicians (EPs). On the other hand, an EMR entry could end up providing a sued EP with a strong defense.
John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland, reviewed a recent malpractice case involving a patient who died of an allergic reaction after being given cephalosporin.
The plaintiff attorney alleged that an EMR entry to the patient’s chart was made much later than represented. The note in question stated that the patient was allergic to penicillin, but had taken cephalosporin without any difficulty in the past.
The patient left with a copy of the ED records without this entry, but the copy of the chart obtained by the plaintiff’s attorney did contain the entry. Due to this discrepancy, the plaintiff alleged the entry was made by the EP after the patient’s death.
In reality, the copy the patient had left with was printed right before the EP was able to complete the documentation. The entry about the allergy was added shortly afterward.
"A forensic analysis of the records showed that the entry was made contemporaneously with the treatment of the patient," says Tafuri. "Therefore, there was no cause of action against the emergency physician."
Additional Layer of Protection
EMR systems that allow for patients to "acknowledge" steps in their medical care, such as risks and benefits of a procedure, can decrease legal risks for EPs because they remove the ability of the plaintiff to allege that something was not discussed with them, says Molly Farrell, vice president of operations for MGIS Underwriting Managers, Inc., in Salt Lake City, UT.
"EMR systems that interact with other providers and send out follow-up letters to patients offer another layer of protection, as one of the biggest issues with ER care is the lack of follow up," adds Farrell.
One radiology group that does numerous reads at community EDs sends a follow-up notice to patients who receive X-rays, stating, "You recently had an X-ray read at X hospital, and the results may require follow-up. Please take this report and share it with your primary care physician at your next visit."
"Often, patients remember that the X-ray ruled out pneumonia, but don’t recall the small mass that requires further work-up," says Farrell. "The radiology group has seen a significant drop in their failure to diagnose claims since they implemented this follow-up method." Consider these other EMR charting practices that may reduce legal risks:
• Don’t assume important information will be conveyed electronically.
Robert J. Conroy, JD, MPH, an attorney at Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, says some hospitals are having problems interfacing their ED’s EHR with a second system used by the rest of the health care system or facility.
"Some ED-specific EHR systems are so well-adapted to that environment that practitioners are loathe to switch," he says. "A facility-oriented system, while suitable for its intended purpose, may be too slow or cumbersome for ED use."
Unless everyone is using the same EHR platform or the different platforms are better integrated, says Conroy, problems like lost orders, test results, and notes can be expected.
Conroy says EPs should not trust the interface between two systems to convey critical information in a timely fashion. "If necessary, pick up the telephone and relay the information," he says. "Of course, such a call should be documented in the chart."
• Include your medical decision-making in EMR documentation.
"How did you get there?’ and What happened while the patient was in the ED?’ are essential parts of the medical record," says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA.
When EPs dictate a note, they tend to be very thoughtful in their account of events or the patient treatment course, he explains. "The modern EMR often is completely void of this information," says Burton. "This is a real problem in defending physicians."
Burton recommends that EPs be sure the medical record includes their side of contentious events that occur, which they suspect may lead to complaints or litigation in the future.
"If it has to be hunt-and-peck’ on the keyboard to enter the information, then get it done," he says.
General comments noting the absence of risk factors or findings during the visit that did not prompt consideration for life-threatening illnesses to be considered, or diagnostic testing to be pursued, should be routine in the EMR just as they were in the dictated medical record, adds Burton.
"Common examples where medical decision making should be entered would be chest pain patients, headache patients, and back pain patients," he says.
• Don’t put unprofessional entries or blow-by-blow accounts in the EMR.
"The medical record is not the place to rant, argue, or state one’s opinions on individuals, health care processes, or events that transpire in the ED," says Burton. In Burton’s experience, these inappropriate comments are more commonplace in EMRs than in dictated or paper records.
"I have seen many a record where a well-intentioned physician entered a note in the EMR that was entirely out of line for professional standards in emergency medicine," says Burton.
For more information, contact:
- John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. E-mail: JHBurton@carilionclinic.org.
- Robert J. Conroy, JD, MPH, Kern Augustine Conroy & Schoppmann, Bridgewater, NJ. Phone: (908) 704-8585. E-mail: email@example.com.
- Molly Farrell, Vice President, Operations, MGIS Underwriting Managers, Inc., Salt Lake City, UT. Phone: (801) 990-2400 ext. 272. E-mail:
- John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. E-mail: firstname.lastname@example.org.