Electronic health records have led to recent issues appearing in the court system that can potentially convolute physician defense. Both health care attorneys and physicians are grappling with new technology that brings with it the need for close attention to new areas of detail. Certain habits, or lack of habits, can affect the medical-legal environment. Physicians who are aware of these issues can take steps to reduce their exposure.
One of the largest problems seen with EHRs is the failure of physicians to review dictated records. After a note is dictated into the electronic system, health care providers should be encouraged to read it and any accompanying documentation such as prescriptions.
Voice recognition systems are not foolproof and can lead to inaccuracies in the transcription of operative reports, office notes, and prescriptions. When a doctor is deposed and has to explain that what the record says is not really what he or she meant it to say, it decreases his or her credibility with the jury and undermines subsequent testimony. When a physician says that the record is not an accurate representation of what occurred, the jury is left with an impression of carelessness and a failure on the doctor’s part to take the time to ensure patient safety. Taking a few minutes to guarantee the accuracy of the record at the time of creation can save years of explanation after a case has been instituted.
The failure of the physician to review his or her notes can also lead to the veracity of the EHR being called into question. We are aware of at least one case in which an emergency department physician was asked to testify at trial about her interaction with a patient from many years prior. Understandably, the emergency department physician did not have a recollection of the visit and intended to rely on the record. The EHR documented the care that was provided, but the physicians had not signed it. At trial, the doctor was not allowed to testify about what she did for the patient. The rationale was that the doctor did not recall what was done, and her failure to sign the EHR contemporaneously meant that there was no evidence that the EHR was accurate.
A physician should be able to say that his or her custom and practice is to review the EHR before it is finalized and make any updates or addendums as needed. That way, even if there is no signature, the physician has given credence to the accuracy of the records.
Health care providers should be encouraged to use the "free-text" section that is available when it adds to the accuracy of the record. Often, the "drop box" does not provide an adequate selection to describe the history or physical. In anesthesia cases, for instance, the EHR drop box may allow only a description of "awake," "drowsy," or "unresponsive." These choices, while true, do not give an accurate picture of the patient. If a patient in the postanesthesia care unit is technically awake but not properly responsive, that should be documented.
Similarly, in the primary care physician’s office there are times when the general description of how a patient is looking can be informative and integral to the physician formulating an assessment. An example might be the case of a sick child. The child may be curious, playful, and smiling when pulling at the stethoscope. If we are using that information as an important part of our decision as to whether or not that child is seriously ill, then that level of detail should be included in the record. The term "NAD" (no acute distress) does not reflect the level of observation that influenced the decision not to do further testing.
If the drop box is the only source of information utilized, then the true description of the patient is not contained within the records. Sometimes, the most important bits of information cannot be explained utilizing drop boxes.
Another common issue is the failure of EHRs to document when a patient calls the physician’s office but is not actually seen for an appointment. The patient alleges that he or she called the doctor multiple times to report a problem. The HER, however, may not have any record of such a phone call. Physicians need to ensure that they are made aware of these telephone calls and that some type of note is made. The note should not just indicate that a call was made but also should document the physician response and recommendations.