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Medical Malpractice:EMRs Can Be Your Friend or Foe in a Lawsuit
Electronic medical records can trip you up in court.
Paul Molinaro
Publish Date: July 9, 2015   |  Tags:   Medical Malpractice-Legal
EMRs in a med mal lawsuit DETAILED RECORD EMRs can hurt you in a med mal lawsuit.

In a medical malpractice case, plaintiffs and defendants alike rely heavily on the medical records to piece together what did and didn't happen. In medical school, they taught me that if it wasn't charted, it wasn't done. In medical malpractice law, I've learned that just because something is charted doesn't mean it was done correctly — or even done at all.

Lawyers have been dealing with altered patient records for as long as they have been suing physicians. Rarely is a physician better at matching pen colors and handwriting than the plaintiff's attorney will be at spotting such an action. However, the days of handwritten records are mostly in the past.

The electronic medical record (EMR) is touted as one of the best new additions to medical record keeping due to its time-saving abilities, its ease of transferring records and its tailor-made templates, which should make it all but impossible to fail to document an important step in patient care. And, yes, recording the detailed care of the patient can be your best friend in the event of a malpractice case. However, some of the very features that make the EMR so quick and easy to use make it potentially dangerous with a couple of pitfalls.

Pitfall: Altering records after the fact
A physician may use the EMR system perfectly — until she gets the whiff of a potential lawsuit. Take, for example, the gynecologist who places an intrauterine device (IUD) into a patient — a procedure she has performed hundreds of times. The doctor is well-versed with the EMR and chooses to write a freehand note in the chart instead of using a ready-made template designed for IUD insertion. She writes that the uterus sounded to 9.5 cm prior to placement, and that the patient complained of pain upon insertion. Despite these abnormalities, the doctor doesn't suspect perforation of the uterus and sends the patient home.

The gynecologist later hears that the patient went to the ER shortly after the procedure. The IUD was in her abdominal cavity; she was diagnosed with a uterine perforation. After learning this, the nervous doc goes back into the patient's EMR and rewrites the notes using the standard template to show that everything was routine — the uterus sounded at 7.0 cm and the patient did not complain of pain.

The patient later sues the gynecologist, and at deposition the doctor claims that she did not access or alter the charts in any way after the day of the procedure. This is a slam dunk for the plaintiff. Why? Because typically after stating this for the official record, the patient's attorney will show the jury the EMR's access logs that make it clear the patient's record was altered. In many states, the attorney can then legally tell the jury to assume that everything the doctor says is a lie, making a successful defense all but impossible.

Had the gynecologist used her true and correct record, the case then would be based on expert witness testimony as to whether the doctor sounded the uterus properly and if she should have recognized the perforation — which makes defense at least possible. Obviously, you should stress to your physicians and staff that altering records after procedures is a big no-no. With EMRs, it's that much easier to determine if something has been changed. As such, make sure that you have a strict policy in place against altering records after a patient has left your facility.

Pitfall: Skimping on details
Keep in mind that detail still matters when working with EMRs. Remind staff and physicians, especially those used to working with handwritten records, that just because the record is electronic doesn't mean it should be any less detailed. When a doctor takes the time to handwrite procedure notes, it provides insight into exactly what happened. The same goes for an EMR.

Another common problem is that many EMR users only stick to pre-chosen words and check-off boxes from a template when entering patient records. If this record is entered in court, it may show a lack of attention to detail.

This is especially apparent in procedure notes written by surgeons after a completed case. When a surgeon dictates a procedure note, he uses a variety of words tailored for the patient and adds details as he speaks. This requires little effort, but can be assumed to be correct since it offers a more detailed look at a particular procedure.

However, if I have a case where the EMR uses language strictly from the procedure template, I can assume that the surgeon didn't take the time or effort to identify the differences and similarities between this procedure and countless others he's performed. Instead, I assume the surgeon just simply clicked sections of text that then auto-populated the note.

Every procedure must have some differences from the ones before, especially if the procedure ends up poorly and the patient sues. Stress to surgeons the importance of taking the time and effort to dictate a detailed procedure note so the entire record retains credibility.

While detailed notes are important, your EMR templates also play a role in your success. Many EMRs have "normal" screens that are easy to fill out. To record any abnormalities, they may need to use a pop-up screen or drop-down menu. To combat this, work with your EMR vendor to make your system as intuitive to use as possible. Also make sure staff and physicians are well-trained not only in how to use the "normal" templates, but also the additional screens and pop-ups. Encourage them to freely enter detailed text for each patient.

Don't mess up
I'm often asked what to do to avoid being sued. Other than the wise-guy answer of "don't mess up," consider what ethical actions you can take now to make defending a medical malpractice case easier. Basically, that comes down to being very familiar with your EMR system and always creating an accurate chart that clearly documents all of the unique findings for each patient.

VASCULAR ACCESS NURSE
All She Does Is Start IVs and Draw Blood

designated IV nurse\ STICK TO IT Designate a nurse to start all IVs so other pre-op staff can focus on prepping patients for surgery.

Here's a slight staffing modification guaranteed to make patients happy and improve surgical flow. Dedicate a pre-op nurse to starting IVs and drawing blood for needed lab tests. Patients endure just a single stick, which improves their satisfaction scores. The admitting nurse, who can focus solely on charting, hangs laminated cards on pre-op bays to indicate which patients are ready for the IV nurse, who staggers line placements according to the surgical schedule.

Shelley Smith, RN, BSN, CAPA
Carolinas Medical Center
Charlotte, N.C.
[email protected]

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