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Avoiding EMR-Related Lawsuits In The ED

Posted on October 25, 2017 I Written By

Anne Zieger is veteran healthcare editor and analyst with 25 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. She can be reached at @ziegerhealth or www.ziegerhealthcare.com.

It’s hardly a secret that while EMRs may offer clinical benefits, they aren’t quite the patient safety or risk management tool one might hope they would be. Hospitals have much greater luck mining EMRs for clinical intelligence retroactively than they have using them to avoiding liability, in part because many aren’t designed to offer such protection.

But according to medical malpractice insurer CNA, there are steps hospitals can take to avoid EMR-related liability in the emergency department, in many cases if they simply avoid some key pitfalls which have caused problems for facilities in the past.

Avoiding copy and paste problems

As we all know, copying and pasting repetitive parts of a patient record from one note to another — such as the patient’s history — can save physicians lot of time. And if that’s all that gets copied, it’s seldom an issue.

However, when physicians rely too heavily on copy and paste functions, it can have a negative effect on patient care, in part by disseminating error-laden or outdated information, CNA has found. Overuse of copy-and-paste functions can also flood records with excess information and make it hard for subsequent providers to find what they need.

To avoid patient care errors associated with the use of copy and paste functions, CNA’s recommendations include the following:

  • Establish policies laying out how copy and paste functions should be used
  • Require clinicians to get ongoing education on proper use of these functions and patient safety risks associated with copy and paste misuse
  • Use a voice-activated dictation system for EMR data entry
  • Have the EMR highlight all copied information and/or prevent copying of high-sensitivity information such as the history of present illness
  • Audit EMRs to understand how providers use copy and paste, and responding when they seem to be abusing this function

Managing requests for EHR-based information

If your ED is facing a professional liability claim, you are likely to face requests for paper production of EMR archives. Part of your goal will be to limit how much EHR-based information is legally discoverable.

An important step in doing so is defining the legal medical record (LMR), which includes information on the provision of clinical care which would reasonably be expected upon request during discovery.

However, producing paper copies of EMR-based information differs from producing records originally created on paper, and hospital emergency departments might face additional liability issues if they haven’t prepared for this adequately. To do so, steps they can take include:

  • Developing policies and procedures for responding to requests for copies of the EMR and audit trails
  • Offering ongoing education for medical staff and employees on best practices for EMR documentation
  • Disclosing the EMR electronically in read-only mode rather than as a paper document

Eventually, of course, hospitals will want to do more than patch together defenses against problems that can occur when using a typical EMR design. Ultimately hospitals will want to make EMRs easy to use and supportive of clinical goals without being too intrusive. I know, most of us feel like we’ll grow old and gray waiting for this to happen, but we mustn’t let it fall off the radar.

In the meantime, the strategies CNA outlines could help your ED avoid medical malpractice litigation and protect patients from needless harm. It may be a transitional strategy but it’s better than nothing.

EMRs Continue To Raise Malpractice Litigation Risks For Hospitals

Posted on May 18, 2015 I Written By

Anne Zieger is veteran healthcare editor and analyst with 25 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. She can be reached at @ziegerhealth or www.ziegerhealthcare.com.

EMRs may yet realize the massive value proposition their fans imagine, but before they get there hospitals still have to roll down a bumpy road.  One threat that continues to loom over hospital EMRs — even if CIOs succeed at battling their high cost and complexity — is the distinct possibility that they will generate new categories of malpractice risk.

With EMRs being increasingly targeted in medical malpractice suits, hospitals and doctors need to be prepared for attacks of this kind. According to a data review by physician-owned med mal insurer the Doctors Company, EMRs were a part of med mal litigation in just 1% of a sample of suits closed between 2007 and 2013, but the frequency doubled between 2013 and 2014 alone, according to a report in Politico. That still only adds up to 2% of cases, but experts expect the number of EMR-involved medical malpractice suits to climb rapidly.

What’s more, trying to bury the mistakes by altering medical records can be a serious mistake. For example, notes an article in Medscape, the documentation which serves as a shield against malpractice accusations can also reveal details of when suspicious changes have been made. While clinicians may not always remember this, EMRs make changes in records after care has been given very easy to trace, something which can end up as quite damning if a patient care outcome is poor.

One particularly common trouble spot for EMR-related errors is self-populating templates, which, while they make life easier for doctors by capturing a patient’s recent medical history, can also create grounds for serious misunderstandings or medical errors.  For example, at a conference attended by Medscape editors, one speaker told the story of a template which generated text saying the patient had had hip surgery — but the patient had actually had a spinal procedure.

Other mistakes EMRs can cause include faulty voice recognition, misinterpretation of drop-down menus, reliance on outdated or error-ridden records and typos that generate medical errors.

However, organizations that are prepared can avoid many of these errors. In an effort to do so, some hospitals and health systems are studying how technologies like EMRs will fit into their workflow. These facilities and systems are creating human-factor teams that conduct simulations in hopes of catching error-causing issues with EMR use before such errors become an issue.  While such teams are not common — though they should be! — a report in iHealthBeat notes that the Society for Simulation in Healthcare had identified at least 165 simulation centers in the U.S. as of summer 2014.

Studying what impact a complex health IT system like an EMR will have on a healthcare staffers seems like a sensible and even brain-dead obvious move. But if less than 200 of the 5,000-odd hospitals are doing so, the healthcare industry has a lot of work to do before it can truly say EMRs are safe.

EMRs Can Create New Malpractice Problems

Posted on October 9, 2013 I Written By

Anne Zieger is veteran healthcare editor and analyst with 25 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. She can be reached at @ziegerhealth or www.ziegerhealthcare.com.

In theory, EMRs have the capacity to improve patient care and avoid medical errors, but they also stand the chance of creating errors of their own, so users shouldn’t expect EMRs to lower their malpractice premiums, according to a story reported in FierceEMR.

In fact, the story suggests, EMRs can create new problems and make it harder to defend against lawsuits arising from some EMR-related problems, including the following, FierceEMR notes:

  • Disabled clinical decision support alerts that, if used, could have caught a problem
  • Auto complete functions that fill in data incorrectly
  • Sharing of passwords, so that physicians look like they’re viewing the chart when they really aren’t or in more than one place at the same time
  • Sloppy documentation, such as data entered incorrectly

What’s more, EMRs create audit trails which make it easier for plaintiff’s attorneys to find errors in care. And on top of that, legal costs for “e-discovery” — the collection of evidence from electronic systems — can raise the expense of a legal battle further, FierceEMR says.

Here’s an example of a situation in which an EMR-based error can create serious legal exposure. In one case lodged against the  University of Pittsburgh Medical Center, a 62-year old man died due to otherwise treatable bleeding in the brain because an intubation failed.

UPMC’s policy is that when a patient is a difficult intubation case, that must be noted directly in the EMR, which then displays a bright yellow banner nothing the problems at the top of the record. However, “difficult intubation” was not noted in his chart.  When his breathing tubes were later removed, he could not continue to breathe on his own. Attempts to re-intubate him failed, and he died.

As if that wasn’t bad enough, the defense alleges that after the patient’s death, a QA official from UPMC accessed the system and retroactively entered data labeling the deceased as a difficult intubaton. When that didn’t create the yellow banner, the defense claims, the official retracted the “diff intub” entry. Unfortunately for him, all of his actions were logged by the system.

The bottom line is that as it becomes apparent that EMRs come with their own set of safety issues, malpractice insurers who once offered premium discounts to those who use EMRs are dropping the idea. EMRs certainly have the potential to offer improved safety in some instances, but human error isn’t going away completely no matter what fixes EMRs offer.