Plaintiff can use EMR charting against you

'Unreasonable claims' from malpractice attorneys might be the result

Few physicians realize that using an electronic medical record (EMR) exposes them to an "Orwellian level of analysis," according to Sam Bierstock, MD, founder of Champions in Healthcare, a consulting company in Delray Beach, FL specializing in advising hospitals, physicians, and technology companies on implementing EMRs and healthcare information technology.

Audits of EMR logs can reveal how long it took a physician to act after an abnormal lab result came in, whether the physician checked an online reference before making a clinical decision, and even whether the physician scrolled down to read an entire document, he notes.

Attorneys might claim a doctor took too long to respond to a lab test result or phone call, failed to check an online reference, or didn't keep a screen displayed long enough. "In the case of litigation, over-aggressive audit capabilities may generate unreasonable claims from malpractice attorneys," warns Bierstock.

Anything in the record

If the plaintiff's attorney requests electronically stored information (ESI), Bierstock says this information covers any data that can be stored or read in a digital format.

ESI includes email, word processing files, web pages, documents scanned and stored in various formats, audio files, X-rays, and photographs — "in short, just about anything in the record," says Bierstock.

Physicians should keep in mind that everything entered into the EMR may be time-stamped, which tells a plaintiff's attorney when data was viewed and when an entry was made in response, he says. "Page views can be timed and documented, as well as scrolling and length of time displayed," says Bierstock. "Basically, every click and view generates a logged action."

Everything is chronicled

Michele Luckie, a senior risk management specialist at Texas Medical Liability Trust in Austin, says, "No matter what EMR software is being used, every entry will include a hidden audit trail that can be accessed."

For example, says Luckie, EMR records can reveal what drugs were researched via an online reference, and whether radiographic images, imported documents, or emails regarding patient phone calls were reviewed.

"It is safe to assume that anything done in the EMR is being chronicled," says Luckie. To reduce legal risks involving EMRs, she says to use these practices:

• Develop EMR policies and procedures.

Luckie advises policies and procedures that include taking security measures, creating and storing a backup tape, tracking of pending labs and diagnostics, locking encounter notes, and entering an addendum in the medical record.

• Become as knowledgeable as possible about the software.

"It's in the physician's best interest to know if the EMR they are using has a component to track diagnostic test results," says Luckie. "If so, it should be utilized as intended."

Physicians should know how their encounter note information is categorized in its final format, adds Luckie. "In reviewing records, sometimes you see 'current complaint' information under the 'health history' heading. This can make the note appear unorganized," she says.

• Print out an entire medical record from time to time.

"Make sure it includes everything, from telephone communications to consult letters," says Luckie. "Some EMRs offer several different print options, and they don't all provide the same content."


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

Warning: Late entries on EMR leave legal trail

Defense can be problematic in defending a lawsuit

Days after seeing a patient for a checkup, a physician remembers a piece of information that should have been charted and adds it to the electronic medical record (EMR).

If a lawsuit is filed later, the plaintiff's attorney would be able to find out exactly what time the late entry was added to the patient's record, says Michele Luckie, senior risk management specialist at Texas Medical Liability Trust in Austin.

"A review of the audit trail — the 'metadata' — would show the late entry," she says. "An addendum to the original note is the appropriate way to add the additional information."

Most EMRs are designed to clearly designate any change to a record that has been closed, usually by the documenting clinician hitting the equivalent of an "enter" button, says Sam Bierstock, MD, founder of Champions in Healthcare, a consulting company in Delray Beach, FL. "Manipulation of a health record that has been closed — accepted by the clinicians doing the documentation — is clearly not an acceptable practice," he says.

If late entries to EMRs are not done properly, these are viewed as alterations to the medical record and can prove problematic in defending a lawsuit, warns Luckie. Late entries in an EMR might be discovered by 'data mining,' a technique that examines embedded information in the EMR's metadata, she explains.

"This process can reveal deleted entries, as well as when they were deleted and by which user," Luckie says. "Auditing an EMR and the metadata within it will provide an accounting of how a physician practices medicine."