EMRs can be costly in malpractice suits

HIMSS15 session shows the perils of poor documentation
By Mike Miliard
03:30 PM
doctor in handcuffs holding money

The numbers drew audible gasps from the audience: $1.7 million here, $7.5 million there.

These were damages hospitals had to pay plaintiffs as a result of malpractice cases whose verdicts hinged directly on the documentation – or lack thereof – in electronic medical records.

At HIMSS15 on Monday, Keith Klein, MD, clinical professor of medicine at UCLA, presented four real-world cases where providers were penalized big bucks thanks to deficient use of their EMRs.

His talk, "Medical-Legal Cases That Went South, Costing Over $30 Million," was a stark reminder that while EMRs can improve care, they can also, when used improperly, leave health organizations vulnerable to huge penalties.

More than 85,000 medical lawsuits are brought against hospitals and physicians each year, and with more than three decades of experience in expert-witness consulting in state and federal medical-legal cases, Klein has been involved in many of them.

In recent years, EMRs have increasingly been the focus of courtroom conversations between judges and attorneys, he said.

Consider some of the quotes Klein had at the ready as he laid out four cases with bad outcomes, where "good physicians" who were "caring" and "honorable" were nonetheless "victimized by the EMR."

"Someone had to order (a lab) and the EMR doesn't seem to track this well," said the judge in one case where the plaintiff was awarded nearly $2 million after charging that his physician missed an abnormal urinalysis – leading, years later, to advanced kidney damage.

"You have a problem here, it appears neither you, nor your doctor can make sense of this EMR," said another judge, chiding an attorney for being unable to discern from the record whether one physician or another was responsible for a particular intervention.

One exchange elicited murmurs of disbelief from session attendees, as a witness explained that, "Your honor, the EMR allows us to massage the data to filter out items so we can create flow charts and graphs."

"A medical record is a medical record," the judge replied, incredulously. "You mean to tell me you alter it as you see fit?"

Another judge dismissed the EMR as exculpatory evidence, noting that, "the record is not to be believed: There is plagiarism, which you euphemistically categorized as 'cut-and-paste.'"

One case ended with the finding that the hospital's "use of the EMR was abominable," said Klein. "The judge was quite upset about how the case was defended. It was not appealed."

This is the world we live in now: "Attorneys have conferences on the electronic record and how to attack," he said.

Sure some judges are "computer illiterate" and may not grasp the finer points of EMR documentations, but that doesn't let providers off the hook for sloppy documentation

There are lessons to be learned here, said Klein: getting electronic signatures for informed consent, minimize scanning, using cut-and-paste responsibly, avoiding note bloat, being careful with templates, using autocomplete sparingly, etc.

"The benefit of the electronic medical record is that it has the potential to prevent malpractice lawsuits with better documentation," he said. But that documentation has to be done right – and requires education, diligence and familiarity with the intricacies of the systems.

"The EMR needs to become a partner, not an obstacle," said Klein.

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