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on copy and paste functions, it can have a negative effect on patient care, in part by disseminating error-laden or outdated information, CNA has found.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.