Big Brother EHR is watching you; protect yourself against lawsuits

You may be aware that the electronic health record (EHR) you just implemented tracks, by date and time, every activity involving the EHR. That includes staff members logging in and out of the system; modification of records, queries or anytime you sign a chart

What you may not realize is that the tracking mechanism, called an audit trail, also can be very beneficial to lawyers who want to sue you.

Deborah Maliver, MD, JD, a physician who practices law in Pittsburgh, Pennsylvania, with Biancheria & Maliver PC, says that audit trails can be used to determine whether records and test results have been viewed in timely manner or at all, and whether records have been altered in any way.

Seeking access to that information, according to Maliver, is “what I do in every case now, where they have EHR records. [Physicians] swear up and down, they never looked at the chart. I can see they looked at it five times. They swear they looked at an x-ray. I can see that they never logged in and never looked at it.”

According to a study available on the Federal Trade Commission’s Web site, EHRs increase access to information for medical professionals and the chance that malpractice lawyers will find some evidence of wrongdoing. That study also discussed the risks involved in data loss or destruction, inappropriate corrections to the medical record that would be revealed by electronic data stamps, inaccurate data entry, and unauthorized access.

An article in the New England Journal of Medicine also noted that new information systems tend to initially increase, rather than decrease, malpractice risks for physician practices, largely because of unfamiliarity with the system and computer-related errors.

The article points out that the existence of metadata, such as the audit trail or email tracking systems, can provide more documentation in malpractice cases, which can be good or bad for the defense. Metadata are discoverable in civil trials, under federal law, and must be made available to plaintiff’s lawyers. State laws vary on whether metadata is discoverable or usable in trials, but the trend is to move most state laws closer to the federal standards.

What can you do now to protect yourself? Sometimes the best advice comes from potential adversaries-in this case, a trial lawyer.
Maliver has the following recommendations:

• If you are charting contemporaneously with treatment, indicate that. If you are not dictating right way, put in a note to explain why.
• If you are making a change in a record, clearly indicate that you are making the change and why. “Changes can be made legitimately,” she pointed out. “Just say, ‘I forgot something.’”
• Don’t try to cover up mistakes. “Really, honesty is a much better way to go,” she says. (If the mistake is serious, you should, of course, consult your own attorney.)

Maliver warns, “Something is keeping track of everything, and I can get at it. Nothing is worse than me getting in there and digging up that you’ve made all this stuff up. Make sure records reflect reality. I can always dig out the truth.”

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