New Malpractice Risks in Your EHR

Ronald B. Sterling, MBA, CPA


January 22, 2019

In This Article

Audit Trails Provide Helpful -- and Potentially Harmful -- Info

The most important defense and plaintiff tool is the EHR's audit trail.

If your practice or HCO is faced with a malpractice lawsuit, your EHR will be closely examined to identify the sequence of events recorded in the EHR. Sometimes this examination will show records of diligent patient care and services that will support defense of a claim. Unfortunately, many discovery processes uncover open care items, incomplete messages, unsigned notes, delayed clinical response, and other dangling issues that call into question what was done for the patient and when it was done.

It's noteworthy that any EHR used by HCOs that participate in the Medicare Quality Payment Program—consisting of the Merit-Based Incentive Payment System (MIPS) or Alternative Payment Models (APMs)—must be a Certified Electronic Health Record Technology (CEHRT) product. CEHRT products produce an audit trail for each user activity for each patient. Viewing a record, editing a note, and issuing a prescription generate individual time- and date-stamped records with the user and activity. Many EHR audit trails include whether any patient information was added or changed.

Audit trails are the first place a plaintiff will look in the event of a medical malpractice lawsuit. These audit trails can reveal whether the doctor and staff responded on a timely basis and managed patient issues around the time of the event or activities leading up to the claim event. Audit trails can show the response to a drug interaction warning, the receipt and response to a secure message from a patient, and the time between receipt of clinical information and the response to the patient. Audit trails allow reconstruction of the response to a clinical or administrative event.

Three Steps to Improve Your Audit Trail

As a practical matter, maintaining an audit trail that supports the practice or organization when care and patient service questions arise is a natural byproduct of documenting responsive clinical services and good patient care. HCOs and physicians do not have to do anything special to have a defensible audit trail. However, if patient services are not properly managed and documents are not reviewed on a timely basis in the EHR, the audit trail will become a powerful weapon against the claims of due diligence and appropriate care.

To ensure proper handling of patient issues and EHR-based support for diligent efforts to care for patients, HCOs need to use the appropriate features of the EHR to support (and document) patient services. This means you need to:

  1. Sign encounter notes on a timely basis to meet documentation and billing standards.

  2. Actively manage incoming messages, clinical information, and reports to ensure timely review and response.

  3. Review EHR response times and overdue items daily to address any open issues.

Audit trails are even more important because HCOs are moving toward more actively engaging with patients on care issues triggered outside of office visits.


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