Avoiding an EHR-related malpractice suit

As electronic health record use grows, physicians must take steps to protect themselves from liability

Long gone are the days when most physicians carried patient charts into exam rooms and jotted down their findings by hand. In some ways, electronic health records (EHRs) have simplified the record-keeping process, but they also may have rendered it more complex and risky.

Research indicates that malpractice lawsuits associated with EHRs have edged upwards, intensifying the need to heed red flags. Awareness of potential problems stemming from the ins and outs of new technology can help physician practices avoid legal repercussions.

Although EHRs were cited in only 1% of a sample of lawsuits closing between 2007 and 2013, the number of EHR-related lawsuits doubled between 2013 and 2014, according to a recent analysis by The Doctors Company, a physician-owned national medical malpractice insurer in Napa, California. The insurer predicts this issue will become even more pronounced in the next few years.

“This is due in part to the reluctance of some major vendors to openly discuss design flaws and work with users to make improvements that facilitate work flow and minimize disruptive drug alerts,” says David Troxel, MD, medical director of The Doctors Company.

PIAA, the trade association that represents medical liability insurers, suggests that clinicians exercise greater caution with vendor agreements. “Vendor contracts may shift liability resulting from less than ideal software design from the vendor onto the user, so we recommend that healthcare professionals read all contracts carefully,” says P. Divya Parikh, MPH, vice president of research and risk management at PIAA, formerly known as the Physician Insurers Association of America, in Rockville, Maryland.

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In navigating EHR systems, physicians often encounter drop-down menus that address the most common scenarios and omit less frequent ones, while some auto-correct features and auto-population of data fields-intended to speed up the process- inadvertently lead to incorrect information input, she says.

Incorrect data input and other user errors rank as the leading reason for EHR-related malpractice claims, according to The Doctors Company. From January 2007 to June 2014, 64% of the insurer’s 97 closed EHR-related malpractice claims involved user errors, while 42% were attributed to system factors. (Some claims had more than one contributing element, accounting for why the two categories do not add up to 100%.)

The most frequent user mistakes stemmed from inaccurate data, hybrid health records (existing in both paper and electronic form), EHR conversion, and issues pertaining to copying and pasting information. Less common issues in this category could be traced to user error, training and education, EHR alert fatigue, and workarounds, according to the report.

A busy physician may be inclined to forego rewriting a patient’s pertinent medical history and current physical findings. “It’s a real temptation to copy the prior note and paste it into the current visit, and then hopefully, go through the newly pasted version and delete things that are no longer relevant, and add what’s new,” Troxel says.

Too often, however, disruptions impede a physician’s intentions to delete extraneous information, resulting in longer notes that bury significant new details and increase their likelihood of being overlooked. “If you have any erroneous or dated information in there, it gets perpetuated and takes on a life of its own,” he says.

Diagnosis failures and medication errors were the top allegations among all EHR-related claims in The Doctors Company’s report. Medication mishaps involved allegedly prescribing incorrect medications, ordering an inappropriate dosage, or improperly managing the patient on the medication.


NEXT: Preparing for unexpected risks


Preparing for unexpected risks

Of the system-related EHR claims, 10% were associated with technology and design issues, such as the formulary and templates not being up-to-date. Electronic systems/technology failures-which occur, for example, when lab or radiology computers are unable to communicate with the main EHR - contributed to 9% of cases.

An additional 7% of cases involved lack of an EHR alert or an alarm/decision support tool. Other complaints spanned the spectrum from faulty data routing to inadequate scope or area for documentation, to fragmentation of similar information (lab and imaging test results) being stored in different areas, according to the report. Some claims contained more than one contributing factor.

Specific internal medicine subspecialists-cardiologists, hospitalists, oncologists and gastroenterologists-were most likely to face EHR-related claims, representing 20% percent of cases all together. Family physicians and general internists were accused in 16% of cases, while obstetricians/gynecologists incurred claims in 15% of cases.

The rapidity of EHR adoption has resulted in major and often unanticipated risks. For example, without proper backup of files, losing the entire electronic copy of all medical records is within the realm of possibility. Ideally, a physician should back up data to an off-site server at least once every day, says Dean F. Sittig, PhD, co-editor of the 2015 book, “SAFER Electronic Health Records: Safety Assurance Factors for EHR Resilience.

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“The more reliant you are on your computer and all the data it contains, the more precautions you have to take,” says Sittig, a professor in the School of Biomedical Informatics at the University of Texas Health Science Center in Houston. Also, in performing a self-assessment of your system, “you have to be really be honest with yourself” and perhaps admit, for instance, that weekly backups are inadequate.

Information overload often results from the sheer volume of important messages a physician receives about patient care. There is also an increase in mandatory clinical documentation tasks. Adhering to Meaningful Use requirements, physicians need to indicate the smoking status-using a checkbox or some other form of structured documentation-for all patients. “The rules have changed, and there’s a lot more to record now,” Sittig says.

Extensive data-keeping has elevated the level of responsibility and accountability for physicians as a result of extensive EHR adoption.

There is “a lot more transparency of information that wasn’t there before,” says Hardeep Singh, MD, MPH, chief of the health policy, quality and informatics program at Michael E. DeBakey Veterans Affairs Medical Center and Baylor College of Medicine in Houston, and the other coauthor of SAFER Electronic Health Records. “With electronic records, physicians have to realize that now we have a window into a black box that can show who has done what and who has seen what.”

An EHR can track the length of time a physician spends on various tasks, such as meeting with a patient, based on starting and signing off on a computerized note. In a situation where both the primary care physician and the specialist miss abnormal test results, the EHR can audit if one or both had reviewed the findings, Singh says.


NEXT: EHRs help document decisions


When used correctly, EHRs actually can help physicians defend their care by documenting decisions and the rationale for making them, says Mariel Taylor, JD, a healthcare litigation attorney at Greensfelder, Hemker & Gale PC in St. Louis and a member of the American Bar Association’s Medicine and Law Committee of the Torts, Trial, and Insurance Practice Section.

For example, some EHR systems prompt physicians to fill out templates or forms explaining why they are overriding each particular drug interaction alert. “That could be very helpful in their defense” if a malpractice lawsuit ensues over a patient’s allergic reaction, Taylor says. Conversely, simply ignoring alerts without proper written explanation “can look bad before a jury.”

Establishing guidelines for email correspondence with patients also would be a prudent measure. Taylor suggests asking patients to sign a consent form stating that e-mails don’t replace office visits and are not to be used in emergencies because physicians may not see the messages in time. This lets patients know what to expect. “A patient is more likely to file a malpractice suit if they feel like their doctor ignored them or wasn’t communicating with them,” she says.

In making the transition from paper to electronic records, quality assurance procedures should be put in place. During the transitional period, Taylor recommends cross-checking paper and electronic records to ensure there aren’t any gaps.

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Physicians should select an EHR program with templates that are useful to them in accurately documenting a patient’s care, rather than a system with numerous data fields that don’t serve their needs. In addition, Taylor notes that “there has to be a way for the program to highlight critical findings, so they don’t get lost in a big, lengthy document that contains a lot of irrelevant information.”

Other useful features in some EHR systems allow for tracking a primary care physician’s referrals to specialists and documenting informed patients’ consent before procedures. The options vary considerably, says Adam Wright, PhD, an associate professor of medicine at Harvard Medical School who specializes in electronic health records and clinical decision support systems.

“Some have a lot of decision support built into them; others are blank canvasses or blank slates,” he says. “You have to decide which things you care about.” For example, an EHR system can be tailored to notify patients when they are due or overdue for colonoscopies, mammograms, Pap smears ,or flu shots.

EHRs have a ways to go in making modifications. “EHR is on a continuum, and the maturity of the electronic medical record is definitely in its infancy,” says Luke Sato, MD, senior vice president and chief medical officer at CRICO/Risk Management Foundation in Cambridge, Massachusetts.

Vendors should consider building some sort of intelligence into their systems that would help a physician “identify what’s critical, what’s important, and what needs to be acted upon,” he says. “Currently, the physician has to do all that work.”


NEXT: Detrimental design?


Detrimental design?

Differences in design among EHR systems also can create conundrums. As vendors try to iron out the kinks, “there’s a lot of effort being put forth to keep EHRs from becoming complicated and overwhelming for healthcare professionals. Ideally, they should be more streamlined and universal,” says Parikh, who also notes a growing consensus to limit the number of intrusive and distracting pop-up messages that physicians receive.

Upgrading to a newer and more user-friendly platform is fraught with challenges as well. Andrew Carroll, MD, FAAFP, of Renaissance Medical Group LLC in Chandler, Arizona, is converting to a third EHR system since opening his solo family medicine practice in 2003. Back then, there were few EHR options. Nine years later, the range of choices had greatly increased, and he switched to a new program. This summer, he changed once again. 

“There’s a learning curve, obviously,” says Carroll, immediate past president of the Arizona chapter of the American Academy of Family Physicians. “We don’t want things to fall through the cracks, so we’re trying very hard to make sure that the transition to the new software is inclusive of the data we had previously.” This transition has entailed paying a vendor to perform the data migration from the old system.

In Carroll’s experience, “it’s very important to shop as many products as you possibly can” before selecting the right one for your physician practice. “Do not make a decision based on the cost, or what your friend is using, or what the healthcare system wants you to pick,” he cautions. “Make sure you pick the software that best integrates with your mode of care. Don’t look for the software that you need to adapt to; look for software that adapts to you.”

The EHR system in Carroll’s practice includes a robust patient portal. By entering encrypted passwords, patients are able to access their own medical records at home and review his notes from their office visits. They can update their medication lists for him to approve or correct as necessary. This way, he says, “the patient is fully invested in the medical record,” and any discrepancies are caught soon after they occur.

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