Electronic Health Records Can Increase Malpractice Liability

Oncology Business News®, August 2015, Volume 4, Issue 7

It may be too early to say whether EHRs have increased or decreased liability for physicians as a whole, but some say the technology generally reduces total medical errors and has no effect on insurance rates.

Matthew Stevens

The erroneous autocorrect, the restrictive dropdown menu, the deadly software glitch: anecdotal evidence of computer foul-ups abounds in the literature on electronic health records (EHRs) and medical malpractice awards.

It may be too early to say whether EHRs have increased or decreased liability for physicians as a whole, mostly because settlements lag so many years behind treatment, but some say the technology generally reduces total medical errors (though not as much as predicted) and has no effect on insurance rates.

At the level of the individual practice, however, EHRs can increase malpractice liability—if those practices fail to recognize the major risks associated with the technology and adopt policies that minimize those risks, experts interviewed for this article said.

The fundamental transparency of EHRs makes it harder to camouflage actual mistakes, they said. It also makes it harder to camouflage sloppy work habits or even to justify good work habits that can be made to look sloppy in court. Defending malpractice lawsuits, therefore, requires not only a commitment to good care but a commitment to the unimpeachable documentation of good care.

“EHR vendors initially promised better notes with less work, but the truth has largely been the opposite. A typical physician probably needs to spend an extra working hour every day to produce records with far more extraneous information but far less core content,” said James J. Stark, MD, founder of Stark Oncology Consulting, in Suffolk, Virginia.

“It is an added hour of the most tedious possible work. It generally produces no benefits to patient care, and it generates zero extra reimbursement, so there is a tremendous temptation to cut corners with copy-and-paste and other shortcuts. Physicians who want to avoid malpractice verdicts must resist that temptation. They must accept each day’s wasted hour as a cost of doing business. Those who don’t can rest assured that lawyers will eventually tear their records apart, creating the appearance of malpractice even in the absence of actual malpractice.”

While the logic of that advice is clear, doctors, nurses, and administrators, at some point, may become so overwhelmed with professional or personal obligations that they do begin to cut corners.

Practices, therefore, must create specific policies concerning the record-keeping obligations and implement safeguards that prevent workers from shirking those obligations, experts said. Good software can certainly help. It can, for example, send out alerts when users fail to do the bare minimum, but it still takes humans to distinguish good records from the shoddy notes that can endanger a practice.

Audits Help With Troubleshooting and Training

The Oncology Institute of Hope & Innovation, an independent practice with a dozen offices in and around Los Angeles, conducts regular audits of patient records. Audits are time consuming, but they go faster with EHRs than with paper records that are stored off-site, and they minimize the risk of problems related to either lawsuits or billing.

“It’s rare to find a problem, but the auditing process is still valuable for a number of reasons,” said Matthew Stevens, the Oncology Institute’s General Counsel and Compliance Officer. “It allows us to evaluate how well we’re training people to use the software and to make improvements. It also allows us to find problems before they come up in lawsuits or billing disputes and, quite often, to correct them. Finally, it gives everyone a strong incentive to be diligent about keeping the sort of good records that impress auditors.”

Bobbie Sprader, JD

Early EHR advocates predicted that system users would require much less oversight by administrators and one another. They said smart software would automatically force users to keep good records (or automatically warn administrators in the event of failure), and thus reduce malpractice awards by making poor record keeping nearly impossible.

Early EHR advocates said that software would eliminate a wide range of errors that were possible with paper records, but many of their predictions have yet to come true. EHR usage is generally associated with fewer medical errors, but many mistakes that programmers promised to make “impossible” still happen.

“EHRs have truly eliminated a few simple errors, like those arising from illegible handwriting, but once you get past that, they’ve created trade-offs for practices to consider. If you set a system up to warn you of every possible error, you’ll waste countless hours on erroneous warnings and learn to ignore the warnings. If you set the system up with virtually no warnings, you risk mistakes you could have avoided,” said Sandeep S. Mangalmurti, MD, JD, the lead author of a much-cited article that warned readers of the New England Journal of Medicine back in 2010 that EHRs might end up increasing medical malpractice suits.

“The clinical decision support is even more problematic. ‘Teaching’ systems enough about balancing standards of care against individual patient needs has proven exponentially harder than many people anticipated. Such features probably have some value when they prompt users to consider something they’d forgotten, but we’re far from the point that healthcare providers should lean heavily on the decision algorithms. We’re not even at the point that EHRs can reliably spot when you mistakenly chose ‘twice daily’ rather than the neighboring ‘daily’ on a drop down menu.”

A Need for More Flexibility

Another problem with the dreaded drop-down menu and other EHR features designed to prevent doctors from doing the “wrong” thing arises when physicians try to override them. Some systems make it very hard to order anything unusual, even something as small as a low dose of medication for a patient with renal or hepatic failure. Practices need to have tools that allow such decisions and convey them clearly through the system so caregivers don’t mistakenly revert to defaults.

It is also highly recommended that systems have policies on documenting the reason for overriding recommendations. Each time a doctor deviates from EHR guidelines designed to reflect standards of care, the system’s implicit disagreement with the decision could be used as evidence in a malpractice suit. In other words, a system acquired to reduce medical errors and defend against lawsuits could become an effective witness for the plaintiff. The only way to minimize potential damage from such evidence is to document a full understanding of the system’s reasoning and produce a full explanation for the disagreement—and to do it in real time. A note typed before something goes wrong necessarily demonstrates that a doctor at least made an informed decision. A note typed afterward does not.

Indeed, according to Mangalmurti and others, time plays a greater role in guarding against EHR-related lawsuits than many physicians realize. The detail that such systems provide when users undertake any action can be extraordinarily revealing. They can, of course, show whether a physician truly did read a vital part of the record, check test results, or read an X-ray before deciding on a course of treatment. They can also reveal just how long a doctor spent studying the record and reading the X-ray before making the decision, a feature that leaves doctors open to second guessing.

Sandeep S. Mangalmurti, MD, JD

Practices that wish to minimize the risk of liability related to timing need policies that demand not only that users read records fully and document their own actions thoroughly, but also that they do so within timeframes that courts typically deem reasonable. They also need training that conveys to all users just how much detail EHRs can provide about timing and how bad it looks when they do or say anything that EHR data or metadata can disprove, even if it’s just misremembering how long they spent looking at something.

Mangalmurti’s 2010 NEJM article warned of these risks, even though it appeared at a time when less than 10% of the nation’s medical practices used anything beyond the most basic EHR systems. It anticipated an even greater risk, however, in periods of transition, when practices are just adopting new systems. Many service providers have since passed through that initial transition, but the dangers remain for the many practices that still use paper records and the many others that will switch to a new EHR.

The Unfamiliar Is a Breeding Ground for Error

“The move from familiar to new systems increases error rates in basically every human endeavor. Unfortunately, case law to date provides basically no recognition of this fact,” Mangalmurti said. “As a result, practices must plan for transitions incredibly carefully. They need systems to ensure that results and orders don’t fall through the cracks, and they absolutely must provide effective training to everyone. System users should be fully comfortable with their new tools before they ever use them with actual patients.”

Research to date on EHR-related liability provides little systematic information about how system records are being used in lawsuits, but the literature indicates that good policy and training has protected healthcare providers against liability related to e-mail and other electronic communication. When medical offices first started to go digital, many predicted that e-mail would lead to a variety of problems that ranged from insecure communications that violated the federal Health Insurance Portability and Accountability Act to questionable diagnoses based on written complaints rather than physical examination. Medical publications echoed with warnings. Practices responded with policies and training.

That said, new communications technologies bring new dangers, and the danger that has begun to worry some attorneys who defend malpractice suits concerns record-sharing among various medical offices. Many independent practices rarely share full patient records, for the simple reason that their software tends to be incompatible, but regulations designed to encourage interoperability may soon make it easy for practices to forward entire records.

Such capacity could provide physicians with more information about their patients, information that could improve the quality of care, but it could also create monumental new obligations.

“The record for a patient with a number of conditions could easily run to hundreds or even thousands of pages. It is clearly unreasonable to expect providers to read that much material on each patient that they see throughout the day. Therefore, providers will need to develop a consistent practice with respect to how they use and maintain both the information and the physical records,” said Bobbie Sprader, JD, a partner at the Ohio-based law firm of Bricker & Eckler who specializes in defending medical negligence suits.

“When it comes to charting in the electronic medical record, I think we are a long way from having identified a best practice. For now, I would advise providers to protect themselves by taking advantage of the ability to enter free text whenever they can. A full 25 pages that do nothing but record drop box selections do not explain the thinking behind a decision as well as a single precisely worded sentence. Ultimately, 1 goal of a medical record is to communicate and the best way for caregivers to communicate quality care through the medical record is to record their findings and thoughts as clearly and effectively as possible,” Sprader said.