Medical Malpractice Case – will your EHR support you?

medical malpractice case and ehr

A medical malpractice case is always an unpleasant surprise.  You may second-guess your actions, or wonder if your insurance company and the attorney they assign are going to do a good job defending you.  But can you also be sure you can produce the medical records that will be used in the case – especially in the form and format that you viewed information and completed the portion of the record that was your responsibility?

There may be issues with producing medical records from your EHR system in a medical malpractice case.

Producing copies of encounter or procedure notes from most EHR systems may be fairly straight forward, but what about all the other medical record documentation that may pertain to the treatment of a patient at a particular point in time?

  • Can you reproduce a report on the trend in laboratory testing results you viewed prior to making a medication adjustment or ordering additional testing?
  • What about all the documentation that is added by others, such as implementing orders for referrals, procedures or diagnostic testing that you wrote in your plan?
  • Will the medication list your system generates have sufficient detail to show when the medication was initiated, modified or discontinued, and by whom?
  • And the issues in hospital medical records are multiplied many times over by the sheer number of staff who make entries in the record.

Will timely maintenance of your EHR become an issue in a medical malpratice case?

This can actually cut both ways.  The display of information or workflow you utilize may change as your system is upgraded to newer versions.  This may make it difficult or even impossible to produce the record based on the workflow in use at the time of the claimed medical malpractice.  But improvements to the system may make it appear to be more supportive of your practice  or more user-friendly than it was previously.

Some physicians regularly purge medical records of inactive patients when state laws permit, thinking this may aid in defending a malpractice case in the future.  Of course, most of the time, the filing period is one year after discovery of an injury, while most state laws allow for purging of records 6 or 7 years after the last encounter.  Injuries due to potential medical malpractice are usually discovered by that time, and in any case, most EHR systems do not even have a capability to delete a medical record.

 The outcome of a medical malpractice case can be influenced by technical aspects of the EHR system.

EHR systems listed as Certified EHR Technology by the Office of the National Coordinator for Health Information Technology are required to have an audit trail of user actions and activities.  But how much detail does the audit report have, and is the terminology used to describe actions clear and not subject to interpretation?  For instance, what will the audit report say when you enter a medication order or even e-prescribe a medication?  Terms like “accepted”, “entered” or even “completed” may be subject to varying interpretations at the hands of a plaintiff’s attorney during a medical malpractice case.

Audit reports also usually contain timestamps that supposedly establish the time a particular entry was made, but what about situations where an entry is started – and treatment activities commence – but the entry is not completed until later, making reliance on a timestamp from the system of questionable value.

And of course there is the issue of authenticating a medical record entry when a physician considers it complete.  We recently were advising a provider that had developed a “home-grown” system, and were surprised to see that entries by physicians and nurses could be modified days or weeks after the initial entry, vs. “locked down” when the provider considered the entry complete.  Fortunately, most commercially available EHR systems have provisions for authentication of a record, plus capability to add an addendum when necessary.

In the long run, you may find the capabilities and programming of your EHR system becoming the focal point of a case, vs. your own actions as a physician.

Is there such a thing as too much information in a medical malpractice case?

The great promise of EHR systems is the depth and breadth of medical information that is available to physicians and other providers.  But in a medical malpractice case, you may be expected to have taken notice of all the information available, and used it in making clinical decisions.  Pop-up warnings and reminders on things like drug-allergy interactions and preventive care may be very useful, but if they are perceived to have become counter-productive to physicians – and are ignored, turned off, or have the sensitivity settings turned down – they may become an issue in a medical malpractice case.

And as the case of the first Ebola patient admitted to a US hospital last year demonstrated, there can be information entered in the medical record that is not readily available to other staff whose access would change the course of treatment or disposition of the patient.  In this case, the emergency department nurses entered information about the patient’s recent arrival from an Ebola “hot zone”, but the ED physician did not access that information as part of his workflow.  The infected patient was sent home, and exposed several other people before returning to the hospital for treatment.

It is human nature to wait until you are called upon to produce medical records for a medical malpractice case to see what you can actually produce from your new EHR system.  But every user of EHRs would be well advised to see what the process would be to respond to such a request, and the difficulties that may be encountered when the chips are down!

When you need proven expertise and performance

Jim Hook, MPH

Mr. James D. Hook has over 30 years of healthcare executive management and consulting experience in medical groups, hospitals, IPA’s, MSO’s, and other healthcare organizations.

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