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Your EHR can save you from malpractice litigation


Wise and careful use of electronic records can save the day in case of malpractice suits

documentation, PSA, The Doctors Company, user-related issues

These days physicians are understandably frustrated by the increased burden of paperwork-especially when that paperwork is electronic. When it comes to protecting themselves from malpractice suits, however, their EHRs can sometimes be their best friends.                                                      

EHR on the defense team

The first line of defense against malpractice claims is documentation, and the paper trail left by EHRs is extensive. This means that if you’re doing your job right, your EHR can be your best defense.

“Having documentation in the medical record is the best proof of what was done, and EHRs are rich data sources,” says Sean P. Byrne, JD, a Virginia healthcare attorney who defends physicians in malpractice claims and lawsuits. 

Used wisely, electronic documentation can sometimes save the day.

Byrne recalls a case in which a patient had an elevated PSA, but the physician did not follow through with the appropriate care.

“We had good electronic data to show that the patient was informed of his test results and multiple attempts were made to schedule follow-up appointments,” he says.

The electronic record and the patient’s engagement with the portal made it perfectly clear that the physician had done his part but the patient had not done his.

“Care is a partnership,” Byrne says. “When you can show that the patient had seven no-shows and was non-compliant, you can prove that they aren’t doing their part.”

Patient engagement via portals can be helpful in other ways as well, particularly when they give patients a sense of being a part of their own care team.

“Patients are less likely to sue when they feel like they were consulted and were a part of the decision-making,“ Byrne says.

However, if you want to make sure your EHR testifies for the defense and not the prosecution, you need to know how to use it wisely.

Customize your system

EHRs aren’t perfect. You can’t depend on the EHR alone to get the documentation right.

Malpractice claims in which EHRs “contributed to patient injury” have increased sharply in the past decade, though EHR-related issues are still a very small minority of causes for complaints, according to data from The Doctors Company, a leading medical malpractice insurer.

In 2018, EHR-related issues accounted for only 1.39 percent of claims. Most of the problems, according to The Doctors Company analysis, were due to “system technology and design issues” or “user-related issues.”

The trend seems to be reversing somewhat, possibly due to more physicians being on the downside of the learning curve. Still, careful use of technology is crucial to making sure your EHR first does no harm.

“When I speak to doctors about electronic records as a tool to prove you gave good care, I always urge them to make it patient specific,” Byrne says. “Don’t just click on drop-down boxes. Instead use the free text fields to explain the rationale for your clinical decisions.

“I had a client recently who should have done an abdominal examination,” Byrne continues. “She said she did, that she always does in this situation. However, it wasn’t documented because there was no place on the template for that type of exam.”

This is a common problem with check-the-box style EHR documentation, but there is a way around that.

“She should have put it in a free text field,” Byrne says. “You need to give me as many tools as you can to show you’ve given the best care. This is especially important when the case is complex or you have an unhappy patient.” 

Byrne also cautions about the use of templates and cut-and-paste charting.

“Jurors don’t put as much stock into auto-populate [as hand-keyed notes],” he says.

Most EHRs allow you to customize your system to suit your practice, and this is your chance to make sure there’s a place to make note of anything that wasn’t on the menu.

“It’s important to take time to customize your EHR system,” Byrne says.

Don’t overdo it

While depending on cut-and-paste and checkboxes can be a dangerous underuse of the system’s features, overuse can be a problem too.

Richard Roberts, MD, JD, professor emeritus of family medicine at the University of Wisconsin, is both a lawyer and a physician, but he prefers to be called a “simple country doctor.”

He was an early adopter of electronic records and remembers the days of making patient notes on 3 x 5 index cards. He knows that the pertinent information often fits just fine and warns against over-documentation.

“There’s a mistaken notion that all information is valuable information, and that it is equally accessible and useful,” he says.

In fact, too much data can hurt your cause.

Byrne describes “hunting through 1,100 pages of printouts to find a narrative note to explain what’s going on.”

Make sure the key facts and clinical reasoning are clear and easy to locate. Even if it takes more than a 3 x 5 note card, make sure the story is easy for your lawyer to find and jurors to understand.

When you input data can be just as important as what you input. EHRs make it both tempting and easy to adjust the record after the fact. However, that can be extremely dangerous.

“Metadata now shows when, where, and what time entries were made-all are time/date stamped,” Byrne says. “Make sure you enter the notes as soon as possible after the encounter. Otherwise it can look self-serving.”

It also means you’re more likely to get caught if you do cheat. 

Roberts recalls a malpractice case with a Chicago pediatrician who was sued when a child had a bad outcome from a case of meningitis. The doctor did everything right but neglected to add the child’s white count to the record.

When she found out she was being sued, the pediatrician panicked and inserted the information into the record. She had done the test. However, by altering the record after the fact without making clear that she was doing it after the fact, she gave jurors reason to think that she was hiding something.

If you document wisely and responsibly, your EHR can do you far more good than harm, because one thing hasn’t changed.

“The key issue,” Roberts says, “is did you give good care?”

Avoiding malpractice is no different today than it was twenty years ago. It just comes down to giving good care and making sure you document that you did. EHRs-if used properly and carefully-can be a big help in doing that.

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