How to prevent malpractice lawsuits due to EHR errors

An elderly female patient with nose/ear complaints mistakenly received a prescription for Flomax-a treatment for enlarged prostate, which isn’t approved for use by women and has a side effect of hypotension. The mix-up happened because the prescribing physician’s electronic health record (EHR) had no drug alert for gender, according to The Doctor’s Company, a Napa, California-based insurer of physician and surgeon medical liability.

According to the company, user factors, which means how physicians and others use the EHR, contribute to 64% of its EHR-related claims, while system factors-such as a system design failure or lack of alert-contributed to 42%.

Related: EHRs are ruining the physician-patient relationship

Diagnosing and treating patients is enough to keep any physician on their toes. Add to that the responsibility of documenting care in the EHR and it creates “a perfect storm of too much complexity,” says Howard Marcus, MD, an internal medicine physician in Austin, Texas, and a consultant for The Doctor’s Company. “I am really disappointed by the issues of functionality and the failures of social engineering that EHRs represent,” says Marcus.

To weather the storm described by Marcus-and avoid a potential lawsuit-there are steps physicians can take to be sure their EHR use doesn’t hurt their patient relationships, or their case in court should a malpractice case arise.

Documentation challenges

Emergency department physicians are busy. But so are virtually all physicians, says Jeffrey Kagan, MD, a Newington, Connecticut-based internist who reviews malpractice cases for lawyers and insurance companies. Physicians need to be mindful about their use of templates to increase documentation efficiency within the EHR, says Kagan.

Further reading: Are HIPAA and interoperability at odds?

“While using templates can be helpful, you have to make sure they’re individual to that patient and that particular visit,” advises Kagan, who is also a Medical Economics editorial advisor. That’s why he urges physicians to “slow down a little bit.” While it’s certainly not easy to talk to a patient while documenting the encounter, you have to make sure you have the right details in the EHR that are accurate for the patient you’re seeing. 

Next: EHRs and metadata

Peter Basch, MD, who practices internal medicine in Washington, D.C., also counsels physicians to slow down while documenting a patient visit in the EHR-while continuing to maintain eye contact with the patient. “You don’t want to miss anything as a physician, and you want to make sure that the patient understands you correctly,” he says. His recommendation to physicians is to abbreviate their findings in an initial note, instead of writing full sentences about what’s unique to the patient. Then they can go back into the record later and update with their full findings. 

He says patients sue physicians when they feel disrespected and that physicians aren’t paying attention to them. “That’s what makes patients angry and feel harmed. Yet another reason that reviewing a chart with a patient during their appointment is so valuable. Navigating through the chart with the patient is also a great way to correct the record in real time,” he says.

Basch, who also chairs the American College of Physicians’ Medical Informatics Committee, says patients’ lawyers would have to prove that harm was done, not just that the physician read something wrong or spelled a name wrong. “People don’t sue you because of a comma, if no harm was done.”

A good alternative is to work with a scribe in the exam room, says Sharona Hoffman, JD, professor of law and bioethics and co-director of the Law-Medicine Center at Case Western Reserve University Law School in Cleveland. Prescription errors can also put patients at risk, so she recommends having another medical professional check the label to confirm the proper dosage. For example, a nurse could have another nurse double check or include it in the quality control process to ensure another pharmacist confirms the dosage.

EHRs and metadata

When a malpractice case comes to trial, metadata-the data that serves to analyze or interpret clinical information within the EHR-is important. The case’s outcome can depend on metadata that reveals the alerts the physician saw while documenting care in the EHR, when the patient’s record was accessed, and how the information was presented, says M. Re Knack, JD, a healthcare and litigation attorney with Ogden Murphy Wallace in Seattle.

Prior versions of patient records exist. That can happen when a physician dictates a report, then corrects the record because it was transcribed improperly. This is where the plaintiff’s attorney will “find the jewels,” she says.

Basch isn’t as worried that metadata will lead to being sued by his patients. Whether someone can prove that you looked at a particular note in the EHR, you can still be sued, he says. In his opinion, physicians should be less concerned about timestamps and more worried about whether they paid attention when they saw an alert or they should have taken a few minutes to review a patient’s labs.

Next: Defining the patient record

With EHR alerts, physicians should think about whether the alert highlighted something they should have known already, he says. Maybe that was an alert recommending an eye exam for a diabetic patient or another alert for a colonoscopy for a 50-year-old man, says Basch. Physicians need to pay attention to any alerts that come up, especially if they point to something a physician should know anyway. “Suits aren’t brought because of an alert. Suits are brought because a reasonable provider should have known better,” he says.

Hoffman says that doctors often protest that the majority of alerts are unhelpful, that they’re distracting during the patient visit and take time away from the patient. But physicians shouldn’t miss critical alerts. If they’re annoyed by the barrage of alerts, physicians should work with their EHR vendor or their IT department to adjust the alerts, rather than turning off alerts on their own, advises Hoffman.

“What’s important to consider is that alerts are filtered properly and tailored to the patient population you’re serving,” says Hoffman. 

Physicians should always make sure to pay attention to defaults within the EHR, in particular when it comes to the date care was provided, says Kagan. For example, if a physician saw patients at a nursing home on a Sunday, but he didn’t document the patient visits in the EHR until Monday and forgot to change the date of the encounter to the previous day, “[he has] quickly graduated from [being] sloppy to fraud,” he says. That’s because he’ll technically bill for care that took place on a different day.

“I think doctors document after work hours all the time,” says Hoffman. “The problem occurs if they try to claim that something happened and it didn’t happen. For example, say they documented in the EHR that the surgery was perfect and everything went as anticipated, but they did that even before the surgery occurred. That’s a problem.”

Defining the patient record

Another challenge is defining the patient record, says Knack. That’s because there are so many systems-from radiology PACS to lab systems to physical therapy notes-that aren’t necessarily included in the patient’s record in the EHR.

Next: Further tips to know

Time stamping of EHR system logins to update the patient record is another issue. This is important because the physician may have dictated and then stored a previous, unsigned version of the chart in the EHR. But the previous version is still available-and discoverable by the plaintiff’s attorney.

Providers have to pay attention to how they’re storing this information and how they’re defining the patient record, says Knack. For example, when a patient requests her chart, does she receive a printout of what’s in the EHR or something more comprehensive that pulls in information from the radiology PACS and the lab systems? This matters because it’s the printed copy of her record that a patient will present to her attorney in their initial meeting about her claim. 

Knack cites the example of a case involving a physician who had a phone call with a patient. The medical record that was printed from the EHR as a result of that one phone call was hundreds of pages long, because many of the pages included charts that were blank and there were some pages that just had timestamps on them. By contrast, a physician who had seen the patient 22 times but used paper notes had fewer than 10 pages of notes.

The sheer number of pages communicated to the jury that the doctor who had a brief phone call with the patient was much more involved in the patient’s care and possibly responsible for medical errors that occurred, Knack says. 

Everyone needs to recognize that the medical record is being used for multiple purposes, says Knack. “You have to be able to generate a [patient record] that reflects the chart in a way that’s usable and that, when read by a third party, it doesn’t get distorted.”