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Medical Malpractice Liability in the EHR


The EHR is creating some risk and liability for providers. Some of these risks are obvious and some are not.

I have written a lot about EHRs in the past. It is the best of times, and is the worst of times when it comes to the work that we do in documenting patient care in our hospitals and organizations. I have been an early adopter and understand the risks, benefits, and alternatives.

In a recent article in Healthcare IT News, a major liability carrier in a study details the legal risks of the EHR, some of which we could anticipate and some of which were not so obvious. The EHR is creating some risk and liability for providers.

Here are my main takeaways of the study:

1. Providers in direct patient care have ultimate responsibility for the data they have access. You can't argue that you didn't see a critical lab or diagnostic study in this day and age when it's easily available to you in the EHR. Ignorance of the available data is no defense in a malpractice suit. You need to review the entire record prior to executing a treatment plan.

2. "Alert fatigue" is a problem. However, if that alert was not acted upon, and it resulted in an adverse outcome, you are culpable. Everything that you do on a modern EHR system is tracked and stored, and can be accessed from a forensic standpoint and used against you in a court of law.

3. Copy and paste should be banned. EHRs make this easy, but it is one of the potentially the most hazardous thing you can do when you are charting electronically. It is lazy and propagates "ratty" data to the detriment of patient care. Insurers and the government have sophisticated tools to detect duplication, and you can be sure that legal counsel will use the same to show a lack of care and failure to accurately and completely document their visit. This can leave the provider open to liability for fraud as well as malpractice. Always document in your own words. There is no other safe way in which to chart.

4. "Auto-population of your note can be hazardous. This is a two edged sword. I love that our hospital records make inclusion of things like social and past medical history easy, by way of automatic auto-population of data previous recorded by scribes, nurses, and other providers. Our system also has the facility to populate on demand things like labs, vitals, diagnostics, etc., in charting. Regardless of who entered the original data, the provider is ultimately responsible for their own note, and its accuracy, and it pays to verify critical data. A good and obvious example would be allergies. How many times have we seen a recorded allergy that was completely erroneous because it was entered by a person not ultimately responsible for the patient's care? You have a duty to the patient to correct erroneous data in the past surgical and medical history, allergies, social history, especially data that is critical to patient care and safety. While I can't speak for other EHRs, our community hospital's EHR makes editing the data that auto-populates a record easy.

5. The EHR keeps track of everything. Every one of your actions, orders, and documentation (including changes and addenda) is logged and time stamped. This information is discoverable in a liability claim and can be used both in defense of your actions, as well as against you. Be careful when charting "after the fact" to avoid any question about false or inaccurate information.

6. "Canned" notes are easily identified and often overlooked by consultants and other providers. I can identify a canned note from a mile away because certain providers always use the same templates for review of systems (ROS), physical and evaluation, and other parts of the chart note. My personal favorite is from the ROS, where the provider documents "Negative except as discussed / addressed in the HPI." This says to me that the provider never did a proper ROS, and I am left with the responsibility of documenting a ROS. It also makes me doubt the quality of the rest of the record.

I would encourage everyone using an EHR to understand their own practices to not only improve the accuracy of documenting their patient care, but also to improve the quality of patient care and to minimize their personal liability in the practice of medicine.

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