How Much Time Did EP Spend with Patient? EMR Can Mislead

Time-stamping being used in malpractice suits

In the course of medical malpractice litigation, the plaintiff attorney claimed the emergency physician (EP) didn’t see a patient with respiratory failure until 15 minutes after arrival. This was what the electronic medical record’s (EMR) time stamp showed, but it wasn’t the case.

“The EP did a nice job of putting in his notes, ‘I was immediately informed of the patient’s arrival and saw the patient as soon as they were in a room,’” says Charles Emerman, MD, professor and chairman of the Department of Emergency Medicine at MetroHealth Medical Center/Case Western Reserve University in Cleveland, OH. The case was resolved in favor of the defense.

Time-stamped EMR entries sometimes give misleading information about how much time an EP actually spent with the patient. “EPs don’t realize there is a whole audit trail with EMRs, but the lawyers know all about this, and they’re going to be looking for it,” Emerman says.

Bruce H. Nagel, Esq., a partner with Nagel Rice in Roseland, NJ, says his firm routinely asks for the number of patients seen during a particular ED shift, and cross references this information with computerized time stamps.

“Oftentimes, we can show that the emergency physician spent literally a few minutes with a patient on a very busy night,” he says. “That, in my view, is a very persuasive thing to argue with a jury — that the doctor was running from room to room and didn’t spend enough time on the history and exam.”

MetroHealth’s ED recently discovered that the time span from when a critical care trauma patient arrives until the EP signs into the computer is between 10 and 15 minutes. “It gives the appearance that a critical trauma patient was unattended to for that time,” Emerman says. “In reality, we are in the room — we are just not in the computer.”

In many EMRs, time stamps can be adjusted to reflect the fact that the EP was in the room at the same time the patient arrived. The computer’s audit trail would show the time was changed, so if a lawsuit occurs, the EP would likely be asked about this in his or her deposition. “You would hope that the truthful answer would be, ‘I wanted the record to reflect what actually occurred,’” says Emerman.

If the EMR’s time stamp contradicts what the EP claims, “it becomes an issue of credibility before the jury,” says Emerman. “If the EP says, ‘I saw this patient immediately,’ and the plaintiff attorney shows the jury the computer time stamp that implies there was a delay, the jury might believe the doctor, or they might believe the computer.”

Here are questions EP defendants are likely to be asked about their workload during medical malpractice litigation by plaintiff attorneys:

• What is your staffing pattern? How many EPs were in the ED when this patient arrived?

If the EP indicates that a change in the ED’s staffing was made recently, it brings up the questions, “Why did you change? Was it a result of this case?” “Most defense lawyers would object to any discussion of remedial actions taken after the incident case being introduced as evidence, but that’s a fight between the lawyers,” says Emerman.

The only issue the EP has to address on the stand is whether the staffing was adequate for care of the particular patient. “Statements during deposition that the ED didn’t have enough nurses or physicians are unlikely to help the EP,” says Emerman. “If those were concerns, this should be discussed with defense counsel prior to the deposition.”

• How much time did you spend with this patient?

“Except for critical care time, I don’t know very many emergency physicians who time themselves going in and out,” says Emerman. “If you don’t know for sure how much time you spent with the patient, guessing is a bad idea.”

The plaintiff attorney might point out that nursing documentation in the EMR indicates the EP saw the patient at 12:03 and wrote orders at 12:06, for instance, and use those time-stamped entries to claim the EP spent only three minutes with the patient.

To refute this claim, the EP would then need to explain how the EMR works — that the time the EP signed on isn’t necessarily when he or she went in to see the patient, and that nurses might have documented that the EP was in with the patient at a later point in time, when they had time to do so.

In another recent malpractice case, the family claimed the EP spent less than a minute with the patient. “The EP responded, ‘I take as long as I need. I don’t think it was only 30 seconds, but I don’t time myself going in and out,’” says Emerman. “Guessing is a bad idea, but you should give the most truthful answer that you can.”

The patient’s perception of how much time the EP spent might be incorrect, and doesn’t take into account the time the resident spent obtaining a thorough history and performing an evaluation, or the time the EP spent discussing the case with the resident, nurses, or consultants, or looking at X-rays.

“A physician serving as an attending physician may need to explain that process in a teaching hospital, and that the attending physician comes into the room with a fairly thorough familiarity of what has already been found by the resident,” adds Emerman.

• How many patients were you caring for at the time the plaintiff was in the ED?

Plaintiff attorneys typically request a log of ED arrivals, and will know how many patients were in the ED when the plaintiff arrived. They will probably find out which patients saw which EP, and possibly obtain chief complaints with names redacted, says Emerman. In deposition, the EP might be asked, “Here are all the patients you saw that day. Is that unusual? Is that a reasonable workload for you?”

“Obviously, 20 patients with minor complaints is a different workload than 10 patients with critical illnesses or injuries,” says Emerman. “It still doesn’t tell the lawyer whether the EP was overwhelmed. It only tells them how many people you saw over the course of your shift.”

In another recent case, the EP testified that “I had another patient who appeared to be more critically ill, given what I knew about the patient, so I had to direct my attention to them.”

“That case was settled before trial,” says Emerman. “You would hope that juries would understand that two critical care patients might come in the ED at the same time and the EP has to care for both of them” — but this isn’t necessarily the case.

If an EP states that the patient didn’t receive their full attention because the EP was overwhelmed, “it’s not likely to be an excuse that is going to work — because the next question is, ‘If you were overwhelmed, why didn’t you call someone in to help you?’” says Emerman.


For more information, contact:

Charles Emerman, MD, Professor and Chairman, Department of Emergency Medicine, MetroHealth Medical Center/Case Western Reserve University, Cleveland, OH. Phone: (216) 778-3577. E-mail:

Bruce H. Nagel, Esq., Nagel Rice, LLP, Roseland, NJ. Phone: (973) 618-0400. Fax: (973) 618-9194. E-mail: