Electronic Medical Records May Cast Physicians in Unfavorable Light During Lawsuits

flying cadeuciiWhile the electronic medical record (EMR) has advantages, it also has introduced liability risks. EMRs can lead to lawsuits or result in a weak defense by casting the physician in an unfavorable light.

EMRs can increase malpractice risk in documentation of clinical findings—copying and pasting previously entered information can perpetuate any prior mistakes or fail to document a changing clinical situation.1 In a study by The Doctors Company of 97 EMR-related closed claims from 2007 to 2014, 13 percent of cases involved prepopulating/copy-and-paste as a contributing factor.2 Copy-and-paste is a necessary evil to save time during documentation of daily notes, but whatever is pasted must also be edited to reflect the current situation. Too often the note makes reference to something that happened “yesterday.”

Checkboxes, particularly those that prepopulate, can be a physician’s nemesis. EMRs have been presented in court that show, through checkboxes, daily breast exams on comatose patients in the ICU, detailed daily neurological exams done by cardiologists, and a complete review of systems done by multiple treating physicians on comatose patients. Questioning in court as to how long it takes to do a review of systems and a physical examination, the patient load of the physician for that day, and how many hours the physician was at work cast doubt on the truthfulness of the testifying physician. A time analysis showed there was no way the physician could have accomplished all that was charted that day, leading to the loss of credibility of that physician in court.

Notes can also be problematic. 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.

EMRs can be bloated with repetitive data, and critical findings can easily be missed. Copying information such as entire x-ray reports and lab data into notes only adds to this problem. Because the details of the chest x-ray can easily be looked up, the x-ray should only be summarized in the note, such as, “chest x-ray normal except for right upper lobe infiltrate consistent with a viral pneumonia.”

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 is not the same as knowledge.

All these common EMR issues—incorrect information, copy-and-paste, and poor note-taking—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.

1Mangalmurti S, Murtagh L, Mello M. Medical malpractice liability in the age of electronic health records. N Engl J Med. 2010: 363:2060-2067. http://www.nejm.org/doi/full/10.1056/NEJMhle1005210?viewType=Print&. Accessed December 8, 2014.
2Troxel D, MD. Analysis of EHR contributing factors in medical professional liability claims. The Doctor’s Advocate. The Doctors Company. http://www.thedoctors.com/KnowledgeCenter/Publications/TheDoctorsAdvocate/CON_ID_006908. Accessed April 8, 2015.

Keith L. Klein, MD, FACP, FASN, is Clinical Professor of Medicine, David Geffen School of Medicine at UCLA. Dr. Klein will be presenting on “Medical-Legal Cases That Went South” at the HIMSS 15 Annual Exhibition and Conference in Chicago on Monday, April 13, in Room W190A.

1 reply »

  1. One implication of this post is that a medical record “owned” exclusively by one member of a profession that has asserted the inviolability of its members’ ownership of said records – frankly without a much more coherent defense than “because that’s the way we’ve always done it” – is a natural target of litigation by the party whose health generates that record’s contents, particularly when the reasons for barring or restricting that party’s access are, or appear, arbitrary and capricious.

    Imagine if that record were to become something more collaborative, with appropriate editorial practices regarding annotation, footnoting, etc – including the capability to, for instance, identify cut/paste entries of the type our post’s author cautions about – instantiated to support the record’s integrity.

    At very least, the enhanced metadata implicit in such a design would add useful, explanatory dimension to the story a medical record might tell about the conduct of a person’s health treatment. In the author’s telling, the ‘conventional’ medical record evidently distorts as often as (if not more often than) it illuminates how a patient’s care has been “done”. Little wonder that a document of such asymmetric authorship, by whatever techniques composed, should fare so poorly as a testament of “the truth” under close scrutiny.