Do EMRs reduce or increase lawsuit risks?

Research from Harvard Medical School points to fewer claims

A study from Harvard Medical School that tracked 275 Massachusetts physicians found that 49 claims related to alleged malpractice occurred before implementing electronic medical records (EMRs), and only two claims occurred after EMRs were adopted.1

"Hospitals are putting a tremendous amount of resources toward getting all providers of care to use these systems effectively," says Gloria H. Everett, president and CEO of MedAmerica Mutual Risk Retention Group, a Walnut Creek, CA-based provider of malpractice insurance and risk management consultative services. "The last thing anyone wants is a mishap in this area."

Tom Baker, JD, a professor of law and health sciences at the Philadelphia-based University of Pennsylvania Law School, says concerns about medical liability are overblown generally, and the vast majority of patients who are injured through malpractice do not bring lawsuits. "That means that concern about liability should never be used as an excuse to avoid improving services," says Baker. "This is especially important with EMRs, because EMRs are one of the most important patient safety technologies ever developed."

Risk reduction strategies with EMRs are the same as always, says Baker: good communication with patients, detailed and careful documentation of treatment, and good follow-up with patients who experience complications.

Baker says, however, that during medical malpractice litigation, "there are a number of ways where plaintiff attorneys may focus on variances of clinical documentation. The expanded use of audit trails and metadata can yield a plethora of data that users may not be aware of."

Many physicians are unaware that every time they interact with the EHR in any way, it creates an electronic footprint that is discoverable by plaintiff counsel, adds Sandeep Mangalmurti, MD, JD, a lecturer in law and fellow at the University of Chicago's Section of Cardiology.

Everett says, "As this plays out through the court system, I believe we are going to have a new expert witness in the courtroom, and that is going to be the IT expert." For example, if the healthcare provider believed he or she entered information that was not in the record or in a place in the record that was not intended, the IT expert would be called upon to explain how that could happen or explain there are many "pop ups" in the EMRs, and often they are ignored appropriately.

Rushed implementation?

Michael Vigoda, MD, MBA, chief medical information officer at the University of Miami Health System, says, "In the rush to adopt EMRs, we must recognize that the mere introduction of a new technology does not guarantee improvements in quality patient care."

After go-live, monitoring of documentation by compliance officers with timely feedback to providers might serve as a risk-reduction tool for inadequate or sloppy documentation, he advises. "When the technology works for the physicians and is incorporated into their workflow, that is when we will be able to determine if EMRs reduce the risk of a malpractice claim," he says.

If EMRs hinder communication between patient and physician, then there will be negative consequences, says Vigoda, but if communication is improved such as by automated release of lab results to a patient portal, then EMRs "may very well be a contributing factor to a reduction in malpractice claims."

Feedback on risks

Mangalmurti says that while EHRs have the potential to reduce physicians' liability exposure, "they are not a silver bullet."

As for whether EMRs increase or decrease malpractice risks, Mangalmurti says "the jury is still out. I think it's quite likely that they do both. We'll see how it plays out in courts as cases slowly percolate up the system."

Legal risks might increase during the initial implementation because systems are half paper and half electronic, he says, or because the EHR is poorly designed or a physician is not using it correctly. (See related stories on shortcuts that increase legal risks, and inappropriate "cutting and pasting," below.)

Physicians need to be involved in making sure that EHRs reflect the day-to-day practice of medicine from the beginning, as opposed to scrambling to make changes to the system only after problems occur, Mangalmurti advises.

"I don't think physicians fully appreciate the diversity of EHRs that are out there," he adds. "Some of them are quite good, and some are not so good."

Reference

  1. Quinn MA, Kats AM, Kleinman K, et al. The relationship between electronic health records and malpractice claims. Arch Intern Med. 2012;1-2. Doi:10.1001/archinternmed.2012.2371.

Sources

For more information on legal risks involving audits of charting in electronic medical records, contact:

  • D. Jay Davis Jr., JD, Partner, Young Clement Rivers, Charleston, SC. Phone: (843) 720-5406. Fax: (843) 579-1355. Email: jdavis@ycrlaw.com.
  • Gloria H. Everett, President and CEO, MedAmerica Mutual Risk Retention Group, Walnut Creek, CA. Email: EverettG@mmrrg.com.
  • Sandeep Mangalmurti, MD, JD, Lecturer in Law and Fellow, University of Chicago Section of Cardiology. Phone: (773) 702-9494. Email: Sandeep.Mangalmurti@uchospitals.edu.
  • Michael Vigoda, MD, MBA, Chief Medical Information Officer, University of Miami Health System. Phone: (305) 585-7037. Email: MVigoda@med.miami.edu.

Avoid risky shortcuts when you use EMRs

Some shortcuts that physicians have traditionally taken with paper charting might resonate poorly with juries when they do the same thing in an electronic medical record (EMR), warns Sandeep Mangalmurti, MD, JD, a lecturer in law and fellow at the University of Chicago's Section of Cardiology.

In one published case, an anesthesiologist prospectively documented events before they occurred, which led to credibility concerns about other documentation by the anesthesia care team.1

Michael Vigoda, MD, MBA, chief medical information officer at University of Miami Health System, says, "Ultimately, the anesthesiologist's practice had to settle the case on this basis." Vigoda is lead author of the paper that emphasizes the value of educating physicians about the hazards of continuing with paper-based documentation practices.1

"Using our electronic data, we developed an automated notification system that alerted physicians within 24 hours that their record contained improper documentation, specifically referencing the particular case and notation in question," says Vigoda. Within six months, the number of cases with prospective documentation decreased from more than 80% to less than 0.5%, he reports.

"Education was the key and timely feedback was the tool that we used to accomplish this," he says. "We capitalized on the opportunity to use the EMR to improve our clinical practice."

Inappropriate late entries

Making a late entry to appear as though it was part of the original note, or charted at the time of the original note, also could have serious consequences, warns Rolf Lowe, JD, an attorney with Rogers Mantese & Associates in Royal Oak, MI.

Always acknowledge late entries as a new or amended note, he advises.

"Attempts to backdate entries or add to prior notes can have repercussions on many levels, from a false claim action to an action by a state licensing board, not to mention evidence that could be harmful in a malpractice suit," Lowe says. "Digital forensics experts can easily identify when the entries were made."

Reference

  1. Vigoda MM, Lubarsky DA. The medicolegal importance of enhancing timeliness of documentation when using an anesthesia information system and the response to automated feedback in an academic practice. Anesth Analg 2006; 103(1):131-136.

'Cut and paste' can make case indefensible

While defending a physician in a medical malpractice lawsuit, D. Jay Davis Jr., JD, a partner at Young Clement Rivers in Charleston, SC, and chair of the firm's Medical Liability Practice Group, learned that a nurse had made a habit of "cutting and pasting" information for patient evaluations in the electronic medical record (EMR) to save time.

"The implications of this are obvious and rise to the level of fraud," says Davis. "The actions in that case made a defensible case indefensible. Cut and paste demonstrates an extreme lack of care for the patient."

In this case, the patient ultimately was diagnosed with an epidural abscess. "The forms the nurse used included four-hour checks of the patient's neurological status by the nurse. She cut and pasted findings for everything included in this section," says Davis.

The initial evaluation had accurate findings that the patient was moving all extremities well. "The problem was the patient developed paralysis between the initial evaluation and the later entries," he says. "It became very clear when the patient was paralyzed and transferred to surgery that he could no longer 'move all extremities well.'" Davis says that although newer EMRs have removed this option, it still exists in some older systems.

Physicians need to fill in extensive documentation to get reimbursed fully for a visit, which has led to a "cutting and pasting phenomena," says Sandeep Mangalmurti, MD, JD, a lecturer in law and fellow at the University of Chicago's Section of Cardiology. "It could be quite innocent, and the physician may have come up with an independent, evolving assessment of what's going on with the patient, but that may not be captured," he says.

A note that was clearly cut and pasted from a previous visit appears as though the physician wasn't paying attention, Mangalmurti says. If the physician is caught cutting and pasting, he says, "there is no there is no explanation that sounds good. The only thing you can say is, 'I was in a rush and had a lot of things to do.'"