Legal Pitfalls to Avoid When Using Your EHR

More malpractice case are arising that, due to deficiencies in the EHR, are raising big problems for physicians.  

That's according to Keith Klein, a practicing physician in internal medicine and nephrology and clinical professor of medicine at the David Geffen School of Medicine at UCLA, who presented a session entitled, "Medical-Legal Cases That Went South, Costing Over $30 Million," at the Healthcare Information and Management Systems Society (HIMSS) conference in Chicago.

Klein, who has served as an expert in more than 350 medical-legal cases, pointed to ongoing research by medical malpractice insurer The Doctors Company that shows an increased number of lawsuits related to EHRs. "We haven't seen the full impact of it yet, but since 2010 they've got data that show [malpractice cases related to EHR use] increasing and increasing ..." he said.

Klein shared four example of malpractice lawsuits during which defendants got into trouble due to EHR use. In total, these cases resulted in cumulative awards in excess of $30 million.

Here are a couple of the EHR legal pitfalls that physicians should avoid, as demonstrated by these cases and other cases that Klein is familiar with:

Pitfall #1: Inadequate capture of informed consentelectronically. One of the cases Klein pointed to included the issue of the defendant being unable to find the informed consent in the patient's medical record, though the physician claimed he had captured the informed consent.

Klein stressed that physicians must capture the electronic signature of informed consent, and make sure that that information is scanned into the EHR appropriately so that it can be found accordingly and that the informed consent is documented in the note.

Pitfall #2: Misuse/overuse of templates and cut-and-paste functionality. In several of the cases Klein described, a common problem during trial was difficulty nonclinicians had, particularly judges, understanding why physicians copied and pasted notes. While Klein said it's OK to cut and paste in certain situations as a "time-saving" effort, he cautioned that it's important to make changes (and appropriate changes) to the note. Similar to cutting and pasting, small missteps when using templates can raise big red flags during malpractice lawsuits. When using templates and cut and paste functions, Klein said some of the biggest mistakes to watch out for include:

• Lack of individualized information about patients;

• Gender confusion in the note;

• Long records for each encounter (raising a red flag that the records have been enhanced by the computer);

• Records with a lot of blanks;

• Repeated typos and spacing errors; and

• Use of similar phrases sequentially.

Pitfall #3: Misuse of shortcuts, checklists, checkboxes, and other tools, such as auto-complete, that pre-populate information. Klein said physicians should be careful not to overuse shortcuts that can lead to "inadvertent falsification" or "note bloat." Also, use auto-complete sparingly, and use free text to include individualized information about patients, he said.

Pitfall #4: Alert fatigue. Watch out for mistakes you might make due to alert fatigue, said Klein, noting that physicians receive way too many alerts per day that "break concentration" and break the thought process. 

One final tip: Physicians need to find better ways to engage with patients while using EHRs, said Klein. "I believe the single greatest thing they need to learn is touch type" so that they can type while focusing on the patient. He added that his practice uses the "triangle system" in which the computer, patient, and physician form a triangle in the exam room. Patients are involved in the documentation and view what the physician is writing, and physicians have a better vision line to the patient so that they can pick up on nonverbal cues and so on.