What Hath EMR Wrought?

March 9, 2012
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New technology is wonderful and you can be certain that along with new advantages also comes new challenges and unintended consequences.

Attorneys love written information.  The written word carries with it some degree of ambiguity, illegibility, missing information, however the digitized medical record is a far different beast.

Once entered into a data field it is there….forever. There is little doubt if it was or was not recorded. The EMR most of the time requires a certain amount of information to be entered in critical fields or one cannot continue to the next  step. This can present challenges during depositions and/or trial.

In many cases this has radically changed the process of preparing for and going to trial for medical malpractice.

AMED NEWS today emphasizes and outlines these changes. Hopefully some of the comments here and in their article can guide readers.

New Jersey doctor being sued for medical negligence has been accused by a plaintiff’s attorney of modifying a patient’s electronic history. A printing glitch caused the problem, Flynn said, but the accusation has meant extra time and defense costs. Computer screen shots were reviewed, more evidence was gathered and additional arguments were made.

“This has taken a life of its own, and we’ve done virtually no discovery on the medical aspects of the case,” she said. “The cost of the e-discovery alone is in excess of $50,000.”

System breaches. Modification allegations. E-discovery demands. These issues are becoming common courtroom themes as physicians transition from paper to EMRs, legal experts say. Not only are EMRs becoming part of medical negligence lawsuits, they are creating additional liability.

Medical data breaches are among the most common reasons that electronically stored information lands doctors in court.

Many of the risks have nothing to do with patient care or medical competence. The term medico-legal liability has taken on a new face.

E-discovery is a growing area of concern, said Joshua R. Cohen, a medical liability attorney and president of the New York State Medical Defense Bar Assn. While legal requests once entailed only paper records, attorneys are now seeking every accessible electronic record, including films, lab reports, emails and phone records.

“Plaintiffs are trying to use e-discovery as a weapon of mass discovery,” Cohen said.

The article in AMED NEWS goes on to cover many points, here are the bullets:

Illustration

How to reduce EMR liability

As the number of electronic medical records increases, so do certain legal risks, medical liability experts say. Common mistakes doctors make with EMRs and how attorneys recommend that physicians reduce their liability risks:

  • Mistake: EMRs allow users to move quickly through patient records, but cutting and pasting information makes it easy to paste incorrect information.
    Recommendation: Refrain from copying and pasting EMR data, and be cautious when moving from one patient’s record to the next.
  • Mistake: Computer programs can help doctors make a differential diagnosis, but the templates don’t often include every possible symptom and corresponding medical condition.
    Recommendation: Doctors should not become overly dependent on electronic diagnosis aids. Electronic systems are no substitute for hands-on diagnosis.
  • Mistake: Because EMRs allow physicians to move through patient charts much more quickly than paper charts, attorneys are noticing that some doctors are not being thorough when writing notes electronically.
    Recommendation: Physicians should keep meticulous electronic notes on each patient and take time to document each chart.
  • Mistake: Some practices can fail to safeguard electronic patient data.
    Recommendation: Practices should encrypt all information on computer devices and have policy that discourages employees from taking portable devices out of the office.
  • Mistake: A system may not clearly indicate changes to records.
    Recommendation: Physicians should install systems that show transparency when modifications are made and/or have a program lockout period where no more modifications can be made to a record.
  • Mistake: Doctors may fail to follow notification requirements in the event of a data breach.
    Recommendation: Be clear on what your state law requires when a data breach occurs, and make sure employees follow the rules immediately.
  • Mistake: Doctors may destroy or delete electronic records when a lawsuit is possible.
    Recommendation: If doctors suspect they are being sued, they must preserve all electronic data related to the patient in question, including emails, phone messages and computer records.

Source: Attorneys Catherine J. Flynn and Michael Moroney of Weber Gallagher Simpson Stapleton Fires & Newby LLP in New Jersey

 

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