Avoiding Legal Troubles Stemming from EHR Liabilities

I'm a big supporter of the EHR and its promise to make documenting patient care more accurate, easier, and clear. I also have a healthy respect for the dangers of the EHR - and see new dangers pop up constantly.

With all good technological tools, there are hazards that need to be recognized. The EHR can pose a liability for providers and institutions, and the legal profession is beginning to exploit this weakness in malpractice actions against providers and institutions.

Modern EHRs have a significant learning curve, and require a complete change in the process of documenting patient care. Many functions are a double-edged sword; including record cloning, automated dictation, medication dose checking, documentation templates, automatic record population, etc. The functionality of the EHR can make the job of providers much easier in generating a record, but this same functionality can introduce bad data, wrong dosages, and other errors that can harm patients.

The bottom line is that providers are ultimately responsible for what is charted in the EHR. Here are just a few examples of these new liabilities and how to avoid them.

• Scribes. Much of the charting that is done on the front end of a hospital admission is performed by the nursing and ancillary staff, or in the ER, scribes. This is very helpful in a busy inpatient and/or outpatient department, and speeds patient care and documentation. However, unless the provider verifies the accuracy and completeness of the record, significant errors can made.

• Cut and paste. The "cut and paste" function is one that is familiar to anyone using a computer in the modern age. This can interject errors, and propagate them when one does not exercise due diligence in making sure that the final record reflects the actual encounter. There are tools available which make searching for repetitive text in a record very easy. Obvious propagation of narratives and erroneous data, over and over again, is hard to defend in a court of law, and demonstrates that care was not taken. It also introduces doubt into all areas of the records being scrutinized.

• Note cloning. "Cloning" is another issue that works much like cutting and pasting. Cloning is the practice of copying an entire previous record into a new, editable record. The hazard here is obvious, and similar to the previously discussed practice of cut and paste. It goes without saying the more information and data that you "clone," the greater the risk you are going to miss something, and propagate erroneous data.

• Use of templates and macros. Macros for things such as review of systems and physical examination can really make you look bad when another provider or lawyer is reviewing your record. It is easy to miss that you called a positive physical finding negative, if you don't carefully review the record prior to finalizing it.

• Pull-down menus. Finally, clickable pre-populated components and pull-down menus can be hazardous in that it is sometimes easier to choose the wrong thing than it is to use "free text" to customize the finding or information.

On the bright side, templates for procedures help providers quickly and accurately document informed consent, indications for the procedure, the actual procedure, and the post procedure care by giving the provider a concise and complete format for documentation. The other benefit of the EHR from the provider standpoint is allowing the provider to make a more complete record in support of the level of care that is being billed.

I have to admit that in the past, I have used all the functionality of the EHR, and have made mistakes in my documentation. After studying these issues, and becoming aware of the hazards to patient safety and care, I'm much more sophisticated in my use of the functionality of the EHR. I still use macros and auto-text, but my use of cut and paste is limited to including diagnostic test reports that don't auto-populate. I never use cloning even though the functionality is still allowed in our EHR.

One of the big changes for me has been the deployment of enterprise level dictation in our EHR. Now, even though I can type 60 WPMs, I can much more rapidly and accurately dictate a unique HPI, PE, and plan, and better ensure that the record is accurate.

Take the time to understand EHR technology, and avoid the pitfalls that can be expected to increase your liability in the delivery of patient care.