Executive Summary
Physicians are using electronic medical record (EMR) functions that result in authorship falsification, disabling of audit logs, and document misattribution without understanding the legal implications.
Some EMRs print information in a way that raises suspicions, such as dating a record when it was signed off on instead of when the patient was seen.
Physicians can use comment fields to explain lengthy response times and overrides of drug alerts.
Before accepting an order set, physicians should ensure everything is appropriate for the specific patient.
The way information appears might surprise physicians
In one case involving the tragic death of an infant, the hospital’s electronic medical record (EMR) automatically changed the child’s age to the date of the record’s release. Documents received by the plaintiff attorney in response to a discovery request referred to a 3-year old child.
"You can imagine how prejudicial that would be," says Reed D. Gelzer, MD, MPH, founder of Trustworthy EHR, a Newbury, NH-based data quality and information integrity consultancy specializing in the legal aspects of EMRs.
"Most such instances conveyed to me involve hospitals or clinics that did not know what they were sending out the door in response to a records release request," says Gelzer. (See related story below on data integrity failures in EMRs.)
Medical-legally, EMRs are a "Pandora’s box," says Sam Bierstock, MD, founder of Champions In Healthcare, a consulting company in Delray Beach, FL that advises hospitals, physicians and technology companies on implementing healthcare IT. "Most malpractice attorneys have not yet realized the depth of capability they have with EMRs. And when they do, we will have a major challenge," says Bierstock.
Physicians can consider these practices to reduce legal risks:
• Physician practices can test how the EMR would create a record in response to a discovery request.
"There are a number of amusing anecdotes about what the court has received, because nobody looked at it," says Gelzer. "[Providers] sometimes learn after the fact that really strange things occur."
Some EMRs print information in a way that appears suspicious, such as dating a record when it was signed off on, not when it originated. This issue could make it appear as though a patient was seen on a different date than actually occurred. "There is almost always a way to sort those things out. But what that immediately alerts an attorney to is they can’t trust what they are looking at," says Gelzer.
Anomalies that appear to be red flags but turn out to be innocent mistakes can take many hours for attorneys to sort out. "The last thing you want is something that diverts attention from your narrative of the facts," says Gelzer.
• Physicians should take advantage of comment fields to explain authorship edits, overriden drug alerts, delayed records entries, and to explain their thinking in the event of any intentional variances from established guidelines.
• Before accepting an order set, physicians should ensure everything is appropriate for the specific patient.
"The potential for liability is if the physician hits accept all’ and submits orders without really reading them," says Bierstock. "There may be orders that don’t apply to that patient."
