New Malpractice Risks in Your EHR

By Ronald B. Sterling, MBA, CPA National Source

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  • January 30, 2019

SOURCE: Medscape

New Malpractice Risks and Electronic Health Records

Malpractice liability risks for physicians, practices, and healthcare organizations (HCOs) continually change, owing to a variety of healthcare and technology issues. From changes in treatment and care strategies to the ability of your electronic health record (EHR) to support new patient service tactics and care responsibilities, you need to be aware of these risks. You also need to manage your EHR use to address potential malpractice-related risks.

On the plus side, as more patient care tools are built into EHRs and as more active patient care interventions become part of your patient treatment routine, EHRs may help you manage patients and your clinical activities.

However, built-in EHR features that display warnings and advisories can produce a cacophony of visual and auditory noise that can be distracting. Physicians need to be able to control and manage them. EHR-generated advisories that are misleading or inappropriate could disrupt patient service, confuse physicians, and undermine confidence in the EHR.

If a malpractice case arises, the plaintiff could see evidence that’s residing within your EHR, and use it against you. For example, EHR drug interaction warnings as well as notifications of incoming secure messages are tracked and recorded by the EHR. Such information may be used for internal performance tracking, managing clinical operations, or to review how your practice or HCO responded to a patient issue, related to a malpractice claim.

Indeed, many plaintiffs home in on ineffective EHR use and incomplete information as a weapon to undermine the entire EHR-based patient record as well as the quality of care provided to the patient.

Still, practices or HCOs that use EHRs to proactively manage patient issues and record clinical information on a timely basis have a valuable tool to provide cost-effective patient services and prevent lapses that could lead to a claim.

The key issue facing HCOs is how to make use of the EHR’s capabilities to enhance relationships with patients, encourage adherence to care recommendations, and address the demands of value-based medicine. The goal is to avoid lapses in clinical care and operations that could lead to a claim of medical professional liability and to yield patient records that withstand the scrutiny of a discovery process.

To appreciate the importance of maintaining EHR records, you need to understand what your EHR is recording throughout your workday.

Audit Trails Provide Helpful — and Potentially Harmful — Info

The most important defense and plaintiff tool is the EHR’s audit trail.

If your practice or HCO is faced with a malpractice lawsuit, your EHR will be closely examined to identify the sequence of events recorded in the EHR. Sometimes this examination will show records of diligent patient care and services that will support defense of a claim. Unfortunately, many discovery processes uncover open care items, incomplete messages, unsigned notes, delayed clinical response, and other dangling issues that call into question what was done for the patient and when it was done.

It’s noteworthy that any EHR used by HCOs that participate in the Medicare Quality Payment Program—consisting of the Merit-Based Incentive Payment System (MIPS) or Alternative Payment Models (APMs)—must be a Certified Electronic Health Record Technology (CEHRT) product. CEHRT products produce an audit trail for each user activity for each patient. Viewing a record, editing a note, and issuing a prescription generate individual time- and date-stamped records with the user and activity. Many EHR audit trails include whether any patient information was added or changed.

Audit trails are the first place a plaintiff will look in the event of a medical malpractice lawsuit. These audit trails can reveal whether the doctor and staff responded on a timely basis and managed patient issues around the time of the event or activities leading up to the claim event. Audit trails can show the response to a drug interaction warning, the receipt and response to a secure message from a patient, and the time between receipt of clinical information and the response to the patient. Audit trails allow reconstruction of the response to a clinical or administrative event.

Three Steps to Improve Your Audit Trail
As a practical matter, maintaining an audit trail that supports the practice or organization when care and patient service questions arise is a natural byproduct of documenting responsive clinical services and good patient care. HCOs and physicians do not have to do anything special to have a defensible audit trail. However, if patient services are not properly managed and documents are not reviewed on a timely basis in the EHR, the audit trail will become a powerful weapon against the claims of due diligence and appropriate care.

To ensure proper handling of patient issues and EHR-based support for diligent efforts to care for patients, HCOs need to use the appropriate features of the EHR to support (and document) patient services. This means you need to:

Sign encounter notes on a timely basis to meet documentation and billing standards.

Actively manage incoming messages, clinical information, and reports to ensure timely review and response.

Review EHR response times and overdue items daily to address any open issues.

Audit trails are even more important because HCOs are moving toward more actively engaging with patients on care issues triggered outside of office visits.

Malpractice Risks in Documenting Care Management Services

Care management services, such as Medicare chronic care management services, are also an area where malpractice risk may be supported or undermined by the EHR. Asthma, congestive heart failure, prostate cancer, and rheumatoid arthritis are examples of chronic diseases that may be supported with care management services.

Such services require that physicians pay attention to how the clinical situation evolves for a patient. The practice or HCO may be responsible for reaching out to the patient on a periodic basis or responding to incoming information about a patient situation. Remote patient monitoring may receive objective information from a web-enabled scale, spirometer, glucose meter, or blood pressure/pulse device, as well as objective information from a health assessment questionnaire application on the patient’s smartphone. (Note that HCOs can be compensated for the case management and remote patient monitoring separately.)

A physician’s office may receive remote patient monitoring information any time on any day. Typically, the incoming information is analyzed to determine whether the patient requires a response from the organization. For example, a patient-specific setting could trigger an alert to the on-call staff in the event that the patient’s weight increased, or the pulse is outside of the patient’s prescribed pulse range.

Similarly, the health assessment answers could be analyzed to determine whether a patient is not feeling better today and the HCO should contact the patient. The receipt of the information and notification to the on-call staff as well as the response by the staff is noted in the call management software.

Monitoring Care Management via EHR
Documentation and record-keeping are difficult to do with most EHR systems because care management services dramatically differ from a typical encounter. The trigger for the contact and the continuing effort to address the care management situation may occur over several days or even weeks before the continuity-of-care issue is resolved. For example, the continuing exchanges of information with a patient require connections between the initial contact, such as a reported weight or a health assessment questionnaire, and the response of the HCO.

The response may include a call to the patient, a call to emergency services, or a medication change. The supporting documentation for billing complicates the process because care management revenue is driven on a calendar month, whereas a care management issue may span calendar months.

A new set of ancillary products has come out that are available for use over the Web to manage and document the care management effort. However, patient records that are split between the EHR and care management systems create a new set of malpractice risks and issues.

Practices or HCOs need to ensure that the care management strategy includes a continuing process to manage and address issues on a timely basis.
For example, doctors may not be able to view continuity-of-care information from the care management software within the standard patient medical record. The doctor or staff may have to copy important information from the care management software to provide proper context to the clinical decisions recorded in the EHR, as well as properly document the response to the patient issue in the EHR and the care management services software. The timing and any delays will be available for scrutiny through the audit trails. Therefore, practices or HCOs need to ensure that the care management strategy includes a continuing process to manage and address issues on a timely basis.

Care management-based patient services can trigger an immediate need to engage the patient on a more extensive level with a nurse or physician assistant, or a doctor through a telemedicine visit.

Lower Malpractice Risk Through Video Visits (Telemedicine)
Telemedicine visits are conducted through a HIPAA security-compliant web meeting with a patient. A physician might conduct a video visit in response to a care management issue, receipt of the secure message from the patient portal, or scheduled in place of an office visit. Telemedicine visits may include use of web-enabled diagnostic tools, such as a spirometer and a blood pressure/pulse device.

To lower malpractice risk, the physician or practice must document the encounter on a timely basis and ensure that the instructions and recommendation to the patient are clearly conveyed and any follow-up issues addressed on a timely basis. Note that the patient may record the telemedicine visit. It may be a useful tool to encourage patient care and support the due diligence efforts of the physician or practice, as long as the telemedicine visit is properly structured and conducted to explicitly and clearly communicate the physician’s decisions and recommendations.

Additional follow-up with patients on video visits may be a critical component to your patient service strategy that will also lessen the chance of any problems. For example, a recommendation to change medications during a video visit may trigger a follow-up call on the effect of the medication change through a care management arrangement.

EHR Modularization Presents New Lawsuit Threats
With several EHRs, the evolving patient care requirements, including care management and telemedicine, are addressed through interfaces to specialized software. Many EHRs have been interfaced with patient portal, care management, patient contact management, and diagnostic software. Interfaced products typically exchange a subset of information that is used to support the patient services but may complicate patient record-keeping and raise your malpractice liability risks.

To understand the complete situation, and also see the potential danger, a physician or staff may have to access several software systems. For example:

Some EHR vendors use a third-party patient portal that maintains its own records of interactions with patients outside of the basic EHR. The patient portal interactions are not visible from the EHR view, and the physician may not get an accurate sense of the patient’s evolving condition.

Care management software may allow the user to create a report from the patient services, which is saved as an image on the EHR. The care management information may be reviewed through accessing the image, but the care management information will not be displayed in context with EHR-based activities, such as prescriptions issued or telemedicine information.

EHR modularization complicates the management of patients. It means that physicians need to pay attention to all modules to ensure that all patient issues are addressed promptly. To avoid problems, HCOs need to have a strategy to ensure that all doctors and staff are aware of the source and structure of interfaced systems. They also need to be trained on how to access patient information on the interfaced systems. For example, all patients on a care management plan that uses an interfaced care management system should be clearly flagged in the patient’s EHR record.

HCOs are subject to several patient care and technological changes that affect patient service expectations and responsibilities as well as affecting the underlying medical professional liability risk. Although physicians and HCOs are not obligated to use any specific EHR feature or capability, failing to use EHR-based tools to address value-based medicine and meet changing patient expectations may undermine the ability of the practice or HCO to succeed.

On the other hand, making use of the added features that the EHR brings to “stretch the clinic” and improve patient engagement will help create success. Physicians will build a better patient service method, and the underlying records that document care efforts will help protect physicians if a lawsuit occurs.

Ronald Sterling is a nationally recognized EHR expert and serves on the Medscape Business of Medicine Advisory Board.