Late Entries to the EMR: Do They Help or Hurt Defense?

Attorneys will uncover “true story”

A plaintiff’s attorney in a missed myocardial infarction case showed the jury an EMR entry indicating the patient’s heart rate was within normal limits, as well as vital signs taken by a nurse’s assistant showing severe tachycardia.

“The one careless ‘checkbox’ entry was used to absolutely gut the strength of pages and pages of good entries.” says D. Jay Davis, Jr., a partner at Young Clement Rivers in Charleston, SC, and chair of the firm’s Medical Liability Practice Group, who successfully represented the EP defendant.

“The doctor did what he was supposed to do. But the plaintiff’s lawyer argued to the jury that they cannot trust any of the findings in the EMR,” he says. “Ultimately, I think the jury did not fault the doctor for the inconsistency. But it was a huge problem for the defense.”

A late entry would have made the case easier to defend, he says, because it would have addressed the discrepancy that had been clearly noted in a different part of the record. “Changes to eliminate an inconsistency in charting can help with the validity of the ‘good’ entries that you are relying on in the record,” says Davis.

Doubts Are Raised

The same rules apply for making late entries in a patient’s medical record, whether it is paper or electronic, says William C. Gerard, MD, MMM, FACEP, chairman and professional director of emergency services at Palmetto Health Richland in Columbia, SC. “What is different is that every time the electronic chart is ‘touched,’ there is a time-date stamp and your access is recorded,” he says. “No need to add a date and time; it speaks for itself. There is 100% transparency about when you added the addendum.”

Late entries can cause the accuracy of the entire medical record to be questioned, says Gerard, “which the lawyer can then use to deconstruct the accurately documented timeline, and then extrapolate that to anything in the EMR altogether.”

A plaintiff’s lawyer may hire a computer forensic specialist to draw out the “true story” of the chart with technology by making the metadata available for viewing, says Davis, adding that an otherwise credible defense witness may have a difficult time answering questions about entries made after a bad outcome.

“If comments are changed, erased, or deleted and the computer specialist finds it, that will be shown to the jury,” he warns. “After that point, the witness will have zero credibility.” Here are risk-reducing strategies involving late EMR entries:

• Entries made after a bad outcome should be strictly factual.

“Leave subjective comments and statements out. They will be seen as self-serving at best and admissions of guilt at worst,” says Davis. He adds that anything an EP actually did, but did not document at the time, is a reasonable addition to make after the fact — so long as it can be confirmed or verified independently.

For instance, an EP might note that he reviewed an EKG or lab result and the findings were normal or did not warrant follow-up based on the presentation that is in the chart. “This still must be noted as a late entry. But the ‘evidence’ is there, and objective in nature,” says Davis.

EPs should not add criticisms of other providers or their decisions, stresses Davis, or explain why interventions or tests were not done after a bad outcome.

“This does no one any good, appears to acknowledge mistakes, and gives plaintiff’s lawyers potential theories of liability they may never have thought of in the case,” he says. Davis says making a late entry stating that a patient left against medical advice “is dangerous. Not only does it appear self-serving, but it potentially blames the patient, which can backfire in court.”

• Late entries should be clearly noted as such.

EPs should not hesitate to complete the record with facts they recall, so long as the late entry is clearly noted as such, says Davis, but “be clear about the timing, be factual about the entry, and be honest.”

• Late entries must not inadvertently give a false time line.

In some cases, EPs make late entries to the EMR to get something in the record that was concurrently documented in a paper chart. “The classic example is a cardiac arrest code situation,” says Gerard. “Everything happens at a rapid pace and the ordering of therapy outpaces any chance for electronic entry, so it is documented on paper.”

After the event, the orders are placed in the system electronically, but they now appear to be given after the event and are asynchronous to the paper version. “This is an incredible legal risk. Discrepancies in time in any critical event opens the door for liability,” says Gerard.

If verbal orders are given by the EP during a traumatic code blue while the documenting nurse scribbles the orders and times on a sheet of paper, the EP may later go back to attribute the verbal orders to the doctors who were directing the code.

“He does not change the time of the orders to match the time scribbled down, and the paper is destroyed,” says Gerard. “So when did the patient get the fluids and medications? Thirty minutes after he got there? No wonder he expired.”

Gerard says that EDs should have a policy in place to explain this process, “and the orders must contain metadata that explains that they are being documented after the fact, including when they were administered, and not just when they were entered into the system.”

Sources

For more information, contact:

  • D. Jay Davis, Jr., Partner, Young Clement Rivers, Charleston, SC. Phone: (843) 720-5406. Fax: (843) 579-1355. E-mail: jdavis@ycrlaw.com.
  • William C. Gerard, MD, MMM, CPE, FACEP, Chairman/Professional Director of Emergency Services, Palmetto Health Richland, Columbia, SC. Phone: (803) 434-3319. E-mail: bgerardmd@gmail.com.