Malpractice 'Discovery' Dangers in Your EHR


Picture this: You've been sued, and now the plaintiff attorney has the right to send in an expert to sit at your computer and examine information in your electronic health record (EHR). Besides any mistakes you might have made, system-wide bugs or design flaws that lead to data inconsistencies could be found and held against you in the discovery phase of a malpractice lawsuit.

Doctors are becoming increasingly aware that EHRs can create certain malpractice risks. However, an expert in EHR and liability says there is a new category of malpractice risks in EHRs that most doctors have never considered. These include EHR system issues that you were never aware of and didn't cause.

"Every aspect of EHR selection, implementation, and use may be examined in the course of medical malpractice discovery to uncover the source of the incident, or undermine the records that are being presented in defense of the malpractice claim," says Ronald B. Sterling, CPA, MBA, national EHR expert, Silver Spring, Maryland, and author of Keys to EMR Success (Greenbranch Publishing; Phoenix, Maryland; second edition, 2010). "Anything could be a malpractice issue, from the product itself, the way it was set up, or how you've been using it."

For example, authorized software upgrades can unknowingly cause liability problems. Upgrades to the software can change the historical data presentation you've already worked with. "An EHR upgrade can go back and affect data being stored for a patient," says Sterling. "The upgrade can affect the presentation and the reporting and usage of that information. I'm aware of upgrades in which a large amount of data was lost."

"Even if the practice does everything perfectly, there could be design flaws in the electronic health record or the way the practices uses it or sets it up. This gets exposed in the light of discovery during a malpractice suit. If the plaintiff attorney spots errors in the record -- even if the system, not the physician, creates them -- it calls into question every record you produce and every statement you make."

Once an investigator starts looking into your EHR, there's no telling what they might find. Even though the scope of what they can legally look at is limited, they can compare printed paper records with what appears on your screen.

"They send somebody in and get rights to look at the computer records, assuming the printout doesn't have as much as is in the computer," says Sterling. "When I go in to a physician's EHR system, I can go look at all kinds of things and make any comparisons in record-keeping or care."

"There are all kinds of issues I can now delve into, more than I'd find in the paper world. In the paper world, there is not a lot of supporting information," he says. "However, with an EHR, you can see what time each event or note happened, whether it was before or after another event. These could become critical points in a trial."

What Types of Liability Problems Could the EHR Cause?

Sterling described several types of problems that could create difficulties for a doctor in a malpractice liability case.

Customization. "A lot of systems have setups and customization tools that doctor might want to use. If the doctor is using them, the plaintiff attorney may ask, 'What was the clinical basis for the change, and how did you verify that the EHR properly accepted your change? Explain to us why you set it up to do certain things that caused these other issues to occur.'"

Design issues. The design of the screens or capture and populating of information could also lead to problems. "Some systems do or don't consider phone messages as part of the patient's medical record. In other systems, you have to actively choose whether messages will be considered part of the record," says Sterling. "You might have to defend any of your decisions about the EHR or its features. If the product doesn't include messages, you may be unable to prove your due diligence in dealing with the patient's problem."

System or product bugs (defects). One doctor was using an EHR that had inherent errors in it. It wasn't documenting information correctly. The information being entered was not being stored in the right location, and the patient's medical note was ultimately incorrect. "This now calls into question anything in the note, even if you did the right thing," says Sterling.

Transferring paper records to EHR. What happens to the patient's history that was stored in the paper medical chart? The new EHR form may not specifically account for or match up with every notation you have in the old medical chart. If some information doesn't get transferred in, the plaintiff attorney may ask, "Did the doctor have the full picture of the patient's condition?" The discovery process may include comparing the patient's old paper record (if you still have it) with the history now in the EHR.

Signing notes. Some doctors don't sign their notes. This creates a problem with billing, but it also could prompt the question of whether the doctor actually provided those services to the patient.

Check boxes. Some systems allow the physician to check off a box on the basis of what should have happened during the visit. "The plaintiff's side will look for information to support whether the doctor did everything he said he did. Is the information available in the system, and does it support what the doctor said he did at the visit?" said Sterling.

One physician was inadvertently distributing clinical notes that included inappropriate findings (such as results of tests that would not have been given to that patient). When the note was challenged during a malpractice trial, it called the patient's entire record into question.

"Unfortunately, the physician had been using software that contained the test setups from the vendor," explained Sterling. "He was recording information on the screen and printing it, and the printed copy was appropriate when he gave it to the patient, but the electronic record contained inappropriate findings and events. Because the doctor was using the forms that contained the original test data (even though the data were not quite visible), the EHR incorporated these old findings."

One template affects other screens. When you use templates and you're charting by exception, you're viewing 1 screen. But when you check off items in the box, it sends those data to 5 or 6 other screens, and you may not be aware that the information is now contained on those screens. A doctor may decide to remove the information on 1 screen, but that deleted information has already populated 6 other areas and is still in the patient's medical record.

Usage issues. The vendor stored it one way, but the doctor stored information another way, which changed the location in which information was stored. The historical record actually changed.

"What happened when the doctor could not produce the record he gave to the patient because it no longer existed?" asked Sterling. "The attorney would look at it and say, 'This is not the piece of paper you provided.'"

"Any of these could be the killer issue that ends your chance of successfully defending yourself in a malpractice trial," he says.


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