With cash incentives now available to physicians who adopt electronic health records systems, it seems inevitable that most practices not already using EHRs will soon begin to do so. As an internist who has dictated "RRR without m/r/g" and "PERRLA" more times than I can remember, I'm for anything that makes a doctor's job easier.
But I'm also a lawyer who defends doctors from malpractice claims, and I can tell you that EHRs, while offering many real documentation and work flow advantages, can also introduce new problems for physician defendants. While EHR advocates will tell you that the systems reduce your malpractice risk by making documentation more systematic, and providing you important clinical alerts that reduce the likelihood of bad outcomes, it's also the case that when used improperly EHRs and other new information technologies can complicate your defense in the event of suit.
Much more information is discoverable in a digital world than in a paper world, and this information can be exploited by plaintiffs' lawyers. Indeed, the very notion of what constitutes the medical record is itself evolving, and can now include things that may not seem particularly relevant to a physician.
If you're thinking of switching to an EHR system from paper records, or if you've already done so, you need to know how plaintiffs' attorneys are using electronic records to their advantage, and what you can do to protect yourself.
Testing and diagnostic procedures
In the paper chart era, it was clear that everything clinically relevant to a patient's case was placed into the paper chart and became part of the official medical record. In fact, a great deal of communication among physicians and other healthcare providers, and between doctors and patients, never made it into the paper record. In the electronic world, however, it is far more difficult to define the outer limits of information within the "official medical record." For example, some specialized equipment acquires abundant data points but only utilizes some portion of this information for the clinical output.
In ophthalmology, an orbscan obtained as part of a preoperative evaluation for laser vision correction surgery may also contain abundant additional data that the doctor wouldn't normally consider as part of the evaluation. This data could be considered a part of the medical record. Plaintiffs' attorneys can utilize the data to show the patient had an abnormality (for example, some form of a higher order aberration) that was a "contraindication" to the procedure the ophthalmologist performed, even though it was not, at the time of the procedure, mainstream medical practice to consider such data outside of academic or experimental settings.
In the broadest sense, the medical record incorporates all data obtained electronically on a patient, including information the physician may have considered clinically irrelevant at the time they cared for the patient. This information is discoverable once litigation begins.
Physicians should ensure that their EHR is regularly backed up, as is any data obtained on specialized equipment. Additionally, digital images obtained in color should be retained in color rather than printed in color and then scanned into an EHR in black and white.
More patients are demanding e-mail communication with their physicians. Such communication should, at a minimum, be retained in its original format. The better practice is to save e-mails with patients directly into the patient's medical record.
Failure to retain this information within the EHR increases the likelihood that e-mails could become lost or deleted, and that could complicate a malpractice defense. The mere fact that such communication was not retained looks bad, and some of the lost e-mails might have provided defenses to the allegations within the plaintiff's complaint. The substance of all e-mail communication must be known from the onset of litigation as it may be critical to decisions regarding the merits of the claim and the defense thereof.
Digital, text-based pages represent another source of discoverable communications. Plaintiffs' attorneys are now requesting complete paging logs. When I trained, this information only contained a telephone number and the patient name. However, pages may now arrive as a detailed text message with abundant clinical information. This information can be used to attempt to demonstrate that one healthcare provider had concerns about a patient that were dismissed, or not properly considered, by the defendant physician.
Additionally, comments included within the digital pages that do not directly relate to patient care can damage a malpractice defense. For example, one physician texts information about a patient to share a clinical finding or test result, and includes within that text message a comment that he has a plane to catch.