February 10, 2015
If you are a health care provider, one of the most important things you do is document. You document a patient’s history, complaints, findings on exam, and diagnoses. You keep a record of a patient’s current medications and allergies. You record the time spent with a patient and the directions or instructions given to the patient. Good documentation is in the patient’s best interest; it facilitates thorough and accurate health care and protects the clients from other risks. Proper documentation may also protect a health care provider from liability should an issue arise regarding the care provided to a particular patient. In the context of medical malpractice litigation, documentation is of vital importance and can make or break a health care provider’s defense. One problem that is often encountered in medical malpractice litigation is poorly kept or confusing medical records. Practitioners, medical practices, health care providers, and hospitals alike should have clear record keeping policies, and health care providers should be vigilant in their daily record keeping practices for the patient’s sake as well as to avoid any potential issues should a lawsuit subsequently arise.
Most health care providers now create and maintain a patient’s medical record electronically through a program that creates an electronic health record (EHR). For the most part, these electronic medical records systems improve patient care and accuracy in treatment by keeping a more thorough record for a physician to review and to create during a patient encounter. There are several pitfalls to these systems, however, which can create issues during subsequent litigation. Risk management professionals and health care providers should be aware of these risks and seek to mitigate them in their everyday operation.
One major pitfall is the accuracy and completeness of the documentation generated within the EHR. Depending on the system used, care providers use different templates and generate content for different fields within the template. These fields may either automatically populate or providers may simply cut and paste part of a patient’s record from a prior encounter. While this feature may serve a useful purpose in the care and treatment of a patient, it can create confusion upon subsequent inspection, particularly in litigation. For example, upon review of a single visit several years later, it becomes unclear whether a patient actually complained of all of the items listed in a complaint section or if the provider simply copied these complaints verbatim from a prior visit, particularly when the same complaints are listed for several visits. And in a delayed diagnosis case, for instance, it is imperative to clarify what complaints a patient had and when. Automatically populated fields can confuse this issue and create repetitive entries that give the appearance of rather careless record keeping, or worse, thoughtless medical care. Health care providers should think twice before automatically populating a field or cutting and pasting from prior entries. It is incredibly important to ensure that all entries for a particular visit are accurate for that visit, both in rendering care and upon subsequent inspection during litigation or for other purposes.
Another issue that occurs in hospital generated EHR records is the incorporation of any preliminary test results, external records, and handwritten notes or patient information into the EHR. For example, often times in medical malpractice litigation, the timing and content of STAT preliminary test results are incredibly important. Depending on a hospital’s internal procedures and the system used, these results may be faxed or otherwise communicated and may not necessarily become part of the EHR, while technically they should be part of the patient’s chart. Similarly, records received from outside care providers that are relied upon in rendering care should be incorporated into the EHR. Further, hand written doctor’s or nurse’s notes may get thrown away after being transferred into the HER, misplaced, or for other reasons do not become part of the patient’s record. These issues are even more pronounced in hospitals that utilize paper patient charts or that are still transitioning to the use of EHR systems pursuant to the relevant provisions of the American Recovery and Reinvestment Act of 2009.
First and foremost, it is important that a hospital develop clear policies and procedures for how to handle these types of hard or external records and incorporate them into a patient’s chart, and care providers should follow those policies. Particularly in a complicated case, or a case with a bad outcome, care providers should be extra vigilant about recovering and incorporating any hard copy preliminary test results or external records and maintaining any hand written notes related to a patient’s care. In fact, it may be the best practice to simply have these hard records scanned and incorporated into the EHR. And, as discussed above, it is important to fully document all information regarding a patient’s care within the EHR, including any and all physician’s orders and the timing of receipt and review of any important laboratory or other test results. If something isn’t documented or fails to become part of a patient’s chart, a jury may question whether, for instance, certain tests were actually completed or communicated to a physician. In litigation, it is best to avoid this type of confusion, which can easily be done by proper and careful documentation.
Safe and effective use of EHR systems starts with complete and thorough documentation. From a liability standpoint, accurate and complete documentation of a patient’s course of care is essential. Regular review of your electronic record keeping system and associated policies is imperative to ensure your system meets your individual needs and complies with other important legal requirements found in the Health Insurance Portability and Accountability Act of 1996. When in doubt, consult with your risk manager or an attorney regarding your record keeping practices.