Electronic Medical Records Increase Potential Liability for Physicians

Guest post by Keith L. Klein, MD, FACP, FASN.

The use of electronic medical records (EMRs) is increasing liability risks for physicians. We have not yet seen the full impact of EMRs, because cases take three to four years to be filed from the time of the adverse event. However, we are beginning to see data that show EMRs are a contributing factor in malpractice suits.

In a study by The Doctors Company of 97 EMR-related closed claims from 2007 to 2014, user factors contributed to 64 percent of claims, while system factors contributed to the remaining 42 percent. EMRs can result in a weak defense by casting the user—the physician—in an unfavorable light.

In a recent presentation I gave at HIMSS, I outlined malpractice cases that involved EMRs that resulted in cumulative awards of more than $30 million and reviewed areas where EMRs present the greatest risks.

Risk 1: Copy-and-Paste

Copying and pasting previously entered information can perpetuate any prior mistakes or fail to document a changing clinical situation. In The Doctors Company study, 13 percent of cases involved pre-populating/copy-and-paste as a contributing factor. While it may be OK to use the copy-and-paste function to save time, whatever is pasted must also be edited to reflect the current situation. Similar to copy-and-paste is the practice of using templates. Some of the biggest pitfalls in these two functions are lack of individualized information on the patient, gender confusion, lengthy notes for each encounter that look like they have been enhanced by the computer, lots of blanks, repeated typos and other errors, and use of similar phrases sequentially.

Risk 2: Informed Consent

Physicians must take care to capture the electronic signature of the patient when loading an informed consent into the EMR. Make certain the signature is legible. Also check to be sure the scanned document is in the record and that the informed consent is documented in the notes.

The following is from a case that involved problems with informed consent in the EMR:

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Every Physician and Medical Practice Should Be Aware of These Common Risks and Safeguards for EHRs – Are You? (Part 1)

Guest post by Allan Ridings and Joseph Wager, senior risk management and patient safety specialists, Cooperative of American Physicians.

Part 1 of a two-part series.

Introducing an electronic medical records system into the practice helps the physicians and staff provide more efficient healthcare by making medical records more accessible to all health care team members. It also brings some risks. In this two-part article, CAP Risk Management and Patient Safety identifies 10 areas of risk exposure and provides some brief recommendations in each area.

EMR or EHR

Know your system.  Electronic Medical Record is the term most often used for the electronic system now holding the medical records of the physician’s patients. If patients’ medical data is shared electronically with other facilities, locations, caregivers, and/or billers, the term Electronic Health Record is more accurate. The terms are often used interchangeably. Most articles are using the words “Electronic Health Record.”

Provide updated/additional training periodically, especially after software updates and enhancements.

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What We Think When We’re Led to Think a Certain Way: Wolters Kluwer’s Survey About Healthcare and the American Uninformed

Wolters Kluwer recently released a gem of a survey fit for the bandwagon of health IT topics currently underway.

On its head, the survey results are intriguing and the data does provide some insight into what the American public is thinking when led to think a certain way about a specific topic that, quite frankly, most don’t know much about.

Now, I’m not saying Wolters Kluwer data is flawed. On the contrary, the firm, which makes its living producing qualified data, knows what it’s doing. What I’m implying is that Wolters Kluwer is producing a survey with data collected by an audience that doesn’t truly understand the topic in which it’s responding to.

Let’s dive in and I’ll explain.

According to the survey by the Philadelphia-based company, 80 percent of consumers believe the greater “consumerization” of healthcare – or the trend of individuals taking a greater and more active role in their own healthcare – is positive for Americans.

“Survey data suggests many Americans feel that a greater role in their care is not only good, but necessary, with 86 percent of consumers reporting that they feel they have to take a more proactive role in managing their own healthcare to ensure better quality of care.”

Let’s start here. As a member of the healthcare community, I’ve helped produce similar reports based on surveys I have even helped write, produce, analyze and release to the public. Does that mean my data was a good as Wolters Kluwer? No, not at all.

My point is that there is nothing new here. Nearly every survey of the American public about healthcare tends to suggest that they need to be more involved in their care. All Americans want to take greater control of their car until, seemingly, it’s time to do so.

Even the results suggest that Americans have the information and tools available to them to take on more responsibility.

“Most consumers also say they feel prepared to take on a greater role in managing their own healthcare, with 76 percent reporting that they have the information and tools to take a more proactive role in healthcare decisions ranging from choosing healthcare providers to researching treatment options. Despite feeling prepared, only 19 percent report that they have their own electronic Personal Health Record (PHR).”

Well, there’s the catch. There always something holding people back; no, it’s not the fact that when it comes time for the rubber to meet the road no one is ready to actually start their journey. If only everyone had access to a PHR, everyone would clamor to be more involved in their care.

Certainly, most of us know that this is simply an excuse so no one has to take responsibility for their actions. And, when PHRs are readily available, some other hurdle will keep Americans from moving forward with their engagement.

Finally, of the 1,000 respondents, Wolters Kluwer suggests that a mind boggling 30 percent of Americans want the same experiences with their physicians as they have with other consumer interactions, such as while shopping, traveling or lodging, complete with choices and control.

Here’s where my suspension of disbelief ceases. There’s just no simple to explain this nor is there very much credibility in the statement. The flaw in this piece of detail, in my opinion, is that we’ll never be able to have the same experiences with our physicians as we can with our travel agent or the baker in the local supermarket.

Physicians, after all, develop a much more intimate with their “consumers.” I mean, physicians see us naked and stick us with needles and get a lot closer than the clerk at your local department store. There is simply no way the relationship nor the experience is going to be the same. Which brings me back to my original point: the survey just seems to try to be so much more than it is seemingly as a result of trying to be part of a larger conversation.

But, to mitigate against the risk of you thinking I’m holding out on you, here are the remaining results. Let me know if you agree with my assessment:

According to Wolters Kluwer: “When it comes to choices about physicians, assuming that experience levels and care reputations are similar, consumers rank costs of visits and procedures (20 percent); technologically advanced offices, including the ability to communicate via email with doctors and nurses, schedule appointments online (19 percent); location of practice/office (19 percent) and friendliness of staff (14 percent) as the top four factors influencing their decision.”

Among other findings from the survey: