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:
- Plaintiff attorney: Doctor, where does it show you obtained an informed consent?
- Doctor: In my clinic notes it states patient informed of risks, benefits, possible need for wheelchair, crutches.
- Plaintiff attorney: Did you inform Mr. BX of possible kidney damage?
- Doctor: It would be in the informed consent.
- Plaintiff attorney: Where is the informed consent?
- Doctor: It was scanned in the chart.
- Plaintiff attorney: I know it says that, but where is it?
- Doctor: I don’t know off-hand. I can’t find it in the EMR.
- Plaintiff attorney: Do informed consents always mention kidney failure?
- Doctor: I don’t know. I can’t find it in the EMR.
- Plaintiff attorney: So you really do not know if this one mentioned it, do you?
Risk 3: Shortcuts, Check boxes, Checklists and Auto-complete Functions
Other danger areas are the use of shortcuts, check boxes, checklists, and auto-complete functions. Check boxes, particularly those that pre-populate, can be a physician’s nightmare. Physicians should use shortcuts and auto-complete functions sparingly. It is better to include individualized information about the patient than to resort to auto-complete.
Risk 4: Writing Notes
It is the accepted practice, especially on teaching rounds, to see all patients and then write notes at the end of the day. The EMR automatically dates and time-stamps the physician’s note at the time the note was created. This gives a misleading impression of when the patient was actually seen, and in a rapidly changing clinical situation, the note may not accurately reflect the patient’s clinical condition at the time the physician actually saw him. Therefore, it’s important to state in the note the specific date and time the patient was seen and examined.
The fundamental mantra when writing a note in an EMR is to show you put thought into the record. Free-text entry of three or four sentences conveys far more than several pages of template-driven notes and accurately reflects your visit with the patient. Vast amounts of information loaded into notes are not the same as knowledge.
The following is a case that involved problems with note-taking:
- Plaintiff attorney: Doctor, if the emergency renal consult was called in at 11:30, why did you wait until 6 PM to see the patient, during which time his kidneys became severely damaged?
- Doctor: I did see the patient within 30 minutes.
- Plaintiff attorney: Where does it show that in the chart?
- Doctor: Uh…it doesn’t, I guess. I saw the patient but wrote the note later.
- Plaintiff attorney: So you claim you saw this critically ill patient in 30 minutes, spent one hour evaluating him, but did not document your findings for another six hours?
And later in the trial:
- Defense attorney: But the lab record shows that the kidney function was declining…
- Judge: [interrupting] The physician notes state each day that kidney function was normal. How do you explain that in the face of deteriorating kidney function? Why would a physician write that, unless he hadn’t looked at the lab testing or the patient?
Risk 5: Alert Fatigue
Physicians receive far too many alerts in any one day, leading to alert fatigue and subsequent mistakes when having to concentrate on entering data into an EMR.
All these common EMR issues cast doubt on the integrity of the doctor and the medical record and may lead to adverse decisions in court, as well as increasing the chances of an unfavorable audit by insurance companies or CMS.