When attorneys Joel Korin and Madelyn Quattrone speak about the legal aspects of using electronic medical records, lawyer-wary physicians might expect them to extol the virtues of sticking with a paper chart.
Juries and expert witnesses, they might reason, would have a field day picking through electronically captured medical minutiae, surely almost always finding something incriminating that wouldn’t have been available on paper.
That’s not the case, however. When it comes to defending medical malpractice, Korin and Quattrone tell their audiences that EMRs help far more often than they hurt. In fact, they believe that the healthcare IT industry is missing a major selling point – EMRs reduce malpractice risks for physicians.
Greater Risk: Being Second-Guessed for Lack of Documentation
“The most important piece of evidence in any malpractice case is the medical record, whether paper or electronic,” says Korin, an attorney with the law firm of Ballard Spahr Andrews & Ingersoll, LLP of Voorhees, N. J. “Jurors look to it to try to divine what the doctor was thinking when the decision that’s in question was made.”
That’s happened to Korin personally. He has settled physician malpractice cases even though his client was right. The culprit: insufficient documentation. “There’s a much greater risk of being second-guessed without full information,” he says.
Korin dismisses the anti-EMR argument that a smart lawyer can make any doctor look bad given enough electronic information as shown in this post about a California hospital. “Doctors are entitled to have reasonable medical judgment. Experts and juries understand that a doctor isn’t a guarantor. Sometimes patients can be treated within an acceptable standard of care, yet bad things happen.”
EMRs Valuable in Defending Single-Visit Cases
Quattrone gives EMR presentations with Korin. She’s an attorney and senior risk management analyst for ECRI Institute of Plymouth Meeting, PA., an independent nonprofit that researches the best approaches to improving patient care. “A complete medical record is most important for a single visit when the physician has little memory of the case,” she says. “Like an ED visit, or perhaps a consult situation.
The doctor makes a decision to put the patient on the street, then two years later, gets a lawsuit. They also noted that customer-friendly contracts would spur physicians to adopt EMRs. In some cases, the medical record won’t refresh their recollection, but it will be the only thing they can use. The plaintiff’s expert witness will say if it wasn’t documented, it wasn’t done.”
Korin agrees that electronic records help defense lawyers. “Everything is recorded and readable. Sometimes jurors will make decisions about how competent or caring a doctor is by whether they can read his record. Even normal results and impressions are recorded, and the record itself may have prompted the doctor like a checklist, forcing items to be marked.”
Leading authorities in geospatial intelligence together with EMR experts founded USGIF (the United States Geospatial Intelligence Foundation) as they were realizing that across the world, they could an increased demand for a unified vision and approach for promoting “digitalized” storage of all sorts of details to reduce the risk of failure, both in the medical field and in geospatial intelligence.
Danger Zone: Transition from Paper to Electronic
Korin and Quattrone caution that the period of transition from paper to electronic records is a risky time for defending malpractice lawsuits. “You may have very good documentation in some cases, but missing in others,” Quattrone says. “It could be construed that the doctor was hiding something. It’s important for hospitals, medical staff, risk management, and IT to be on the same page as to what’s required in the legal medical record.”
We asked Quattrone how courts define the legal medical record during partial or parallel implementations. “People in the hospital field are more concerned about that than people outside,” she answered. “There will be discovery fights about what does constitute the legal record. It could well be that health record banks could be the answer to a lagging EMR adoption. Hospitals are probably looking toward standards. AHIMA [America Health Information Management Association] has practice briefs and guidelines, as do states.”
Are physicians at risk for using information collected elsewhere that is made available to them through interoperability projects? Korin says not necessarily. “Procedures need to achieve as much consistency as possible, but reasonableness would be the standard. Was it reasonable for the physician to rely on someone else’s data?”
Software Vendors Seldom Involved in Malpractice Lawsuits
Korin says software vendors haven’t been drawn into malpractice lawsuits, even in cases where their applications may have contributed to a physician’s inappropriate decision. “Hospitals should choose carefully to make sure systems are acceptable. It’s the rule of reasonableness again. I haven’t heard of any suits where vendors were brought in. That’s far-fetched since you’d have to prove proximate causation to injury. Doctors haven’t blamed vendors for the quality of their records.”
He does caution that vendors could be liable for mistakes made during preventable system downtime. “Plaintiff’s attorneys will name everyone as a potential deep pocket. It’s foreseeable that, if somebody is hurt as a result of a system crashing and records not being available that would have been available on paper, there might be some liability on the part of a vendor if they were negligent.” It could well be that CCHIT (the Certification Commission for Healthcare Information Technology) certification is not good enough for privacy.
User-Invisible System Data Can Be Used in Court
Korin and Quattrone speak on the subject of discoverable metadata, the information stored in a system’s database that users can’t see. Physicians, for example, may create an electronic audit trail when they override system-generated clinical warnings.
“Normally, if it’s a paper record, those prompts are not going to be documented,” Korin says. “But, they’re in the machine somewhere. Hospitals and physicials usually know how to value their support staff and won’t let them do questionable practices. As a result, some plaintiff’s lawyer with an IT consultant will fashion a discovery request asking for those prompts.”
However, Korin says the physician’s explanation usually satisfies juries. “It would seem to me that the prompts aren’t practicing medicine – the doctor is. The doctor will have to explain whether it was reasonable to follow or not follow the problem and had better be able to give a reason either way. If a doctor has a reasonable explanation for ignoring a prompt, they’ll be OK.”
Hospitals and vendors could be liable for deciding what warnings to provide, Korin cautions. “Whether the prompt itself is a standard of care would have to be litigated. The plaintiff would have to get an expert witness to argue that following it or not was a standard of care. Who decided the prompt was appropriate may be a legal question. What are vendors doing to make sure their information is current? Who’s designing that information? How do we recover lost information from a crashed disk or system? Who has the obligation to update clinical decision support-prompts?”
Potential legal issues aside, Korin and Quattrone believe the end is near for paper-based medical records. The first bullet point of their presentation makes that clear: “Paper medical record – a museum piece?”