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Avoiding EMR-Related Lawsuits In The ED

Posted on October 25, 2017 I Written By

Anne Zieger is veteran healthcare branding and communications expert with more than 25 years of industry experience. and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also worked extensively healthcare and health IT organizations, including several Fortune 500 companies. She can be reached at @ziegerhealth or

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on copy and paste functions, it can have a negative effect on patient care, in part by disseminating error-laden or outdated information, CNA has found.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

HIM Professional Sing-Along – Let’s Help Doctors Be Doctors Again

Posted on October 28, 2015 I Written By

Erin Head is the Director of Health Information Management (HIM) and Quality for an acute care hospital in Titusville, FL. She is a renowned speaker on a variety of healthcare and social media topics and currently serves as CCHIIM Commissioner for AHIMA. She is heavily involved in many HIM and HIT initiatives such as information governance, health data analytics, and ICD-10 advocacy. She is active on social media on Twitter @ErinHead_HIM and LinkedIn. Subscribe to Erin's latest HIM Scene posts here.

Last week, someone shared with me this amazing video and I have been singing along all weekend. There is quite a bit of skepticism in the lyrics to “EHR State of Mind” but it’s a clever expression of a physician’s view of the shortcomings of using EMRs. I enjoyed the creativity of this song and the video and I hope that these EMR issues are addressed soon as the frustrations he shared are definitely unintentional.

I have highlighted some of my favorite lines from the song below and wanted to share my interpretation from an HIM viewpoint.

“Notes used to be our story…narrative…but replaced with copy-paste…now a bloated ransom note”

This statement really resonated with me and my experiences over the past several years. I have definitely seen the decline in the quality of documentation since the install of the EMR. It doesn’t matter what vendor product is used, the reality is that the documentation has severely suffered because we’ve shifted the physicians’ attention to other workflow processes and EMR checkboxes. Copy and paste has reared its ugly head in far too many charts and we must stop the madness! HIM professionals have stepped in to assist with this by providing real-time auditing and feedback. Plus, HIM has provided assistance by enhancing documentation tools.

“Just a glorified billing platform with some patient stuff tacked on.”

I have heard similar statements on many different occasions. Some EMRs were structured around automating billing processes but that doesn’t mean they have to lack in clinical functionality. From the HIM perspective, we are accustomed to reimbursement and clinical documentation going hand in hand. Coding and billing processes were in need of an overhaul to make for more timely reimbursement and EMRs promised to do just that. Having the clinical documentation and data built into the same system was revolutionary and very exciting for us but it’s still a work in progress to optimize the clinical documentation.

“Uncle Sam promoted it but gone is the interop.” 

Wow- this is sad but true. I remember when I first heard about EMRs, HITECH, and Meaningful Use. I had dreams of sharing data with anyone involved in a patient’s care regardless of geographic location through an EMR health information exchange. Unfortunately, this hasn’t even been possible within the same zip code and sometimes not even among providers in the same organization. True interoperability is definitely missing from our EMR systems.

And lastly, “Crappy software some vendor made us.”

Out-of-the-box EMRs are not a one size fits all by any means. EMRs must be customized, trained on, and implemented in a fashion that works for each provider and healthcare system. The implementation process is not complete at “go-live”. The optimization (and most likely, re-build) period must continue indefinitely until the EMR workflows and data capture are ideal for all patient care, quality reporting, and billing purposes.

Do we really need a “new chart” or is enough optimization possible to get us where we need to be? We are constantly having discussions, starting committees, releasing updates, running reports, and everything in between with hopes that our enhancements will make the EMR more functional and meaningful. I value the feedback from physicians and other clinicians who are using the system daily because their intentions are to deliver the best patient care. EMR obstacles are unacceptable and must be fixed with the help of skilled EMR specialists, HIM and IT professionals, and workflow experts.

Enjoy the video by Dr. Z.

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The EMR Harassment Brigade

Posted on January 9, 2014 I Written By

Anne Zieger is veteran healthcare branding and communications expert with more than 25 years of industry experience. and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also worked extensively healthcare and health IT organizations, including several Fortune 500 companies. She can be reached at @ziegerhealth or

Today a piece appeared in the august New York Times which, frankly, got me a little bit steamed. You may feel the same way if you read it.

In the piece, two New York Times reporters cover a report issued by the HHS Office of the Inspector General looking at possible fraud and abuse among EMR users.  Apparently, the report concludes that CMS isn’t kicking EHR users hard enough.

To be fair, the OIG has enough disapproval to go around. In part, the report breathes fire down the neck of CMS, which, it notes has spent more time fostering EMR use then searching for fraud and abuse among the EMR user population.

But the report also seems to have railed against doctors and hospitals, which it says are using EMRs to upcode, especially (in the OIG’s eyes) by cutting and pasting text from one EMR record to another. This “cloning,” it suggests, may turn out to be a major source of fraud.

So what am I angry about?  Well for one thing, the article itself seems to by the implicit premise that cutting and pasting or other upcoding methods are widespread enough sources of fraud to deserve a full-scale investigation, and that CMS should direct a lot of its resources in this direction.  Guys, okay, I’ve been doing this a long time and I know better, whereas the Times reporters may not, but shouldn’t they have at least challenged the notion that EMR related fraud and abuse is a major problem?  You know, do some investigation?

The other thing that upsets me is the notion that overworked, stressed out EMR users — who have enough in their plate already — should be the ones who take it on the chin if their desperate attempt to keep up the pace do in fact result in the occasional upcoding incident.  Riding doctors can only further tax the surprisingly fragile state of affairs in EMR adoption.  And after spending more than 20 billion to accomplish something, is it worth endangering it to win a few brownie points with Congress?