Do's and Don'ts with the EHR and Malpractice

Larry Schlachter has an interesting perspective on the EHR and malpractice.  He was a surgeon until the age of 52, when he broke his hand playing baseball.

He then went to law school and as a lawyer, he calls this situation "a real gold nugget." He's a retired, injured physician who's now asked to represent patients claiming medical negligence throughout Georgia, where he lives. In addition, he often gets called by physicians "who are looking to get out of trouble," he says.

When it comes to the EHR and malpractice, the most obvious thing that practices need to realize is this: Every time someone at the practice goes into a patient record in the EHR, data is stored showing precisely when the update was made, the physical location of the computer, and who signed into the EHR.

He tells the story of a malpractice case involving a delay in treatment where the physician lied about when he updated the patient's record in the EHR. In this particular case, the patient came into the emergency room at 3 a.m. and wasn't seen by the physician for an hour, which had a detrimental impact on their health outcome. The physician went into the EHR at 11 a.m. later that day, to erroneously note in the patient's record that treatment had been provided in a timelier manner.

In addition to the audit trail in the EHR, the patient's lawyer also had access to the doctor's badge sign- in time at the hospital and when the doctor accessed the patient's X-ray in the [picture archiving communication system]. That was just another instance of where the patient's lawyer was able to "actually catch [the physician] not telling the truth under oath," he says. What's troubling is Schlachter has witnessed this scenario countless times.

Physicians also leave themselves open to charges of fraud if, for example, they choose "other" in the EHR as the reason for an X-ray. Often, physicians will say "they just had to pick something for billing purposes," says Schlachter. In these situations, physicians can actually be accused of trying to defraud CMS or an insurance company.

His advice to physicians who want to avoid getting ensnared in these types of lawsuits? Always update the patient record in the EHR at the point of care. Also be as specific as possible (as in the case of the reason behind the patient's X-ray), he says. For physicians who work alongside a scribe, he recommends that it become common practice for the scribe to note within the EHR that the physician was in the room when the care is being documented.

Reed Gelzer, a health IT policy and EHR specialist with Erie, Penn.-based Provider Resources, Inc, recommends an exercise he says every practice should undertake to witness the reality of the audit trail within the EHR: Create a patient record that's literally called "Fake Patient." Then, as you would with any other patient, all the members of the care team should go and make updates to the patient's record - and you can see easily that the audit trail is readily available within the system.

Gelzer also recommends that practices actually take the time to look at a patient's record after receiving a request from an attorney. Often, no one at the practice looks at what they're printing out and sending to the attorney, he says.