8 Malpractice Dangers in Your EHR

Neil Chesanow


August 26, 2014

In This Article

Are EHRs Changing the Standard of Care?

A key malpractice issue is whether EHR use, particularly in conjunction with meeting meaningful use criteria issued by the Centers for Medicare & Medicaid Services (CMS), is changing the standard of care.

"In the meaningful use measures, we have an obligation to check the drug/drug and drug-allergy interaction issues of a patient," Sterling observes. "If we don't check those interactions, or if we use the system in such a way that the interactions are not properly checked, or we don't do anything with those interactions -- well, we now have close to 500,000 physicians in the United States who are doing drug/drug and drug-allergy interaction checking. So the question is: If we have 500,000 physicians in the United States doing this because of meaningful use, did that become a de facto standard of care?"

"We're really talking about two different issues here," Sterling reflects. "One is recognizing the change in standard of care that's being driven by the use of EHRs, and second is using the EHRs in a way that is going to be helpful to meet that standard of care.

"If I use my EHR in a way to meet that standard of care, I'm going to be fine. But if I don't use it in a way to meet that standard of care, then I'm going to open myself up to all kinds of problems -- and in many cases, these are going to be systemic problems," he says.

Whether the minority of doctors who still use paper charts will encounter standard-of-care issues if they get sued remains an open question. However, it is quite possible, experts believe, that a doctor's failure to use an EHR, or his failure to document by hand his review of the same information found in an EHR's CDS alerts and guidelines, could be grounds for a charge of substandard care.

Legal Consequences of Input Errors

Primary care physicians are chronically pressed for time. Studies show that entering information into an EHR takes longer than it did with paper charts.[4] As a result, many doctors feel compelled to enter data into the EHR as speedily as possible, often with the patient in the room. That's how costly mistakes are made.

Sloppy documentation takes many forms. When transferring paper records to the EHR, there may not be a place in the EHR form for every notation in a paper chart. If some information fails to be transferred, a plaintiff attorney may ask, "Did the doctor have the full picture of the patient's condition?" Sterling says. In discovery, if the paper record is still available, it may be compared with the history now in the EHR. If some information was omitted, it casts doubt on how well you could have cared for the patients without playing with a full deck.

Some doctors don't sign their notes, Sterling says, or they check boxes indicating the services performed without providing supporting documentation. As a result, a plaintiff attorney may ask, "Did you actually provide the services in the note to the patient?"

One doctor inadvertently distributed clinical notes that included inappropriate findings, such as test results that had nothing to do with the patient's condition, Sterling recalls. When the note was challenged in discovery, it cast doubt on the accuracy of the entire patient record.

"Greater access to existing diagnostic data and economic pressures to avoid duplicating tests could lead to errors from inappropriate reliance on outdated or inadequate prior testing," Hoffman writes.[1] "Mistakes may also result from data entry errors," she adds. "Clinicians may be faulted for ignoring critical prompts and alerts from decision support features."

Hoffman also points out that the use of autofill technology may exacerbate the problem of EHR inaccuracies by completing template fields when the doctor types in a letter or two. This may speed things along, but the information may be incorrect, and doctors, in their haste, may not check.

Hoffman cites a study of 60 patient records with 1891 notes from the Department of Veterans Affairs' EHR, generally regarded as one of the best.[1] It found that 84% of the notes contained at least one documentation error, and there were an average of 7.8 documentation mistakes per patient. "If such notes are not carefully edited," she writes, "old symptoms, vital signs, or test results can appear to be current, and such mistakes can create new threats to patient safety and liability exposure for clinicians."

Legally risky input errors need not be inadvertent -- just nonstandard. The journal Health Data Management reports that a family practice in Colorado found that its EHR was randomly deleting such words as "not" when the records were printed and shared with other physicians.[5] As it turned out, the clinician entering the note was an old-fashioned typist who put two spaces rather than one after a period -- once a standard practice. The extra space deleted the first word in the next sentence.

Making matters worse, the vendor knew about the problem and kept mum. Had this come out in discovery, it isn't clear who would be at fault: the vendor, the clinician, or both, experts say. But legally murky situations such as this may prompt malpractice insurers to settle a case rather than risk a bad verdict in court.


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