Due diligence is key when it comes to EHRs and malpractice

By Madelyn Kearns
11:01 AM
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It’s not what you say that matters — it’s what you do and how you use it.

So goes the motto blanketing all professions and endeavors, from campaign trails on down to the compassionate acts of ideal citizenry, where the candidate meets an elderly woman and a passerby helps her across the street. In the healthcare technology world, this pay-it-forward mantra demands amplification; it must remain constant and pressing, it must take-it-forward. There is no time to fumble around for the correct change.

Instances of EHR transitions have a tendency to muddle such advancement, plateauing some practices and putting them at risk for fraud investigations and medical liability issues. The reins often get tossed and the practice inevitably loses itself where it could easily thrive.

“Most transitions to EHR lack adequate planning, analysis and design to preserve integrity of patient medical records, introduce contextual patient information, and ensure accuracy of EHR based documentation,” said Ronald Sterling, EHR consultant, Sterling Solutions Limited, during his MGMA session “Malpractice Discovery in the Age of EHR.”

“In many cases we are ceding any control — we are ceding decisions — to best practices that are promulgated by various vendors, we are giving up clinical control to techno geeks, and we are basically letting the system run our office and our organizations instead of the other way around.”

Naturally, the best way to get through any fraud or malpractice investigation is to avoid it by conducting thorough preliminary documentation and maintaining records from EHR implementation onward. But given the mass uncertainty perpetuated by shifting regulations and the variety of capabilities available within any EHR, it’s also equally natural for a practice to find itself in a bind.

“We are going to be introduced to all kinds of information that we’re capturing in the health electronic record that we don’t have to worry about in the paper world,” Sterling noted. “We also are subjecting ourselves to a possibility of inaccuracy in the medical record not because of what we do, but because of how we use the system.”

So what do these examinations demand of a practice? According to Sterling, it’s a little show-what-you-know mixed with some show-what-you-did.

“In a fraud or malpractice investigation you’re going to have to demonstrate that you did do due diligence in your selection process, that you did care and that you did check to make sure that you could accurately and fairly represent and document the services that were provided to patients in your electronic medical records,” he said.

“We have a lot of problems. Our discovery effort when we are in a situation where there’s a medical professional liability issue or event or we have some fraud investigation going on, we are going to be subject to an investigation that’s going to uncover if we did not do what we needed to do as far as planning, analyzing and designing our systems. You are going to be looked at as to how you did and what did you do to maintain the efficacy and the accuracy of your electronic medical record, and we are going to be subject to evolving standards of care that are coming out of and are a result of the meaningful use standards.”

A practice will be laid bare and observed from all EHR sides. With “all of these challenges lying before us, we have to consider what do we need to do to protect ourselves from these problems,” Sterling said. “EHR-based medical records are vulnerable to a number of design, use and implementation issues that you’re going to have to contend with and that we will have to answer to in a fraud or medical liability investigation.”

First, awareness of both the implications brought about by EHR certification standards. “Certified EHRs do one thing: can you meet meaningful use? Doesn’t have anything to do with charting, doesn’t have anything to do with workflow in an organization, doesn’t have anything to do with imaging in stage 1” — and diverging key practice components to a digital records system must be fermented. Sterling listed the below aspects of high importance not covered in a certified EHR standard:  

Workflow tools
Clinical charting/content
Patient service
Patient portal
Document/image management

Without such considerations, failure in an investigation becomes a more prominent possibility, Sterling argued.

“If we do not have the processes in place to make sure we’re dotting our ‘i’s and crossing our ‘t’s, that medical record will not prove that we cared, that medical record will prove that we failed. And somebody can turn around literally years from now to figure out what we did and when we did it, and that’s what we’re going to be subject to. However, the good news is if we take care of our records, if we monitor them, if we literally make sure they're accurate on a continual basis, that is going to help prove the standard of care, it’s going to prove our due diligence, it’s going to help us prove we provided adequate patient service.”

No matter from what kind of record system a practice is converting — from paper or another EHR — there are certain precautions that can be taken to safeguard veracity and quality of care. Sterling advised the following for each situation:

“Make sure we keep all the materials that we have over the use and selection and all the other aspects of the process in the event that we’re called upon to present them or there’s a problem,” he continued. “And at least once a month, get your super users together and talk about what’s going on with the system, what are the problems. Communicate with your vendor, show your due diligence about trying to get the vendor to solve problems, review the end-of-day process and the results over the month and identify evolving issues.”

Sterling also spoke of conducting a risk analyses related to what collateral is available and documentation of due diligence as key for practices going forward.|

“In the EHR world it’s a different game because we are responsible legally, professionally and every other way to maintain the integrity and the accuracy of the patient’s medical record,” he concluded.