Malpractice and Templates
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ORLANDO, Fla.-Technology has advanced medicine in many ways, but it has also led physicians to focus more on data than patients, said best-selling author Abraham Verghese, M.D.

Verghese, the keynote speaker Tuesday at the Institute for Healthcare Improvement's 28th annual National Forum on Quality Improvement in Healthcare in Orlando, Florida, said physicians' attention has been diverted and patients suffer as a result.

Patients don't like it when doctors break eye contact with them, said Verghese, senior associate chair, Stanford University School of Medicine. They want to feel like their doctors are paying attention to them.

But instead physicians are focused on the prompts within the electronic medical record. He said in a course of a shift it can take 16 clicks to order baby aspirin and 140 clicks to admit a patient for chest pain. It is a "4,000 click-a-day problem," he said. And this lack of interaction with patients is causing resentment. "For every hour with patients, doctors are spending two hours on the computer ... This has to change," said Verghese. "The EMR of today is a mistake of epic proportions."

The distractions have led to oversights during the physical exam, although the chart wouldn't reveal that because every check box is checked off. "I like fiction," Verghese said. "I write fiction but it has no place in the electronic medical record."

Although electronic health records (EHRs) have streamlined podiatric record-keeping, inappropriate use or an overreliance on pre-populated templates can lead to the courtroom. This attorney presents several scenarios of potential malpractice suits and outlines strategies for the judicious use of EHR.

The American Recovery and Reinvestment Act provides for financial incentives for healthcare providers who prove meaningful use of electronic health records (EHR). Meaningful Use of EHRs, as defined by HealthIT.gov, consists of using digital medical and health records to achieve the following:

• improve quality, safety and efficiency, and reduce health disparities;
• engage patients and family;
• improve care coordination, and population and public health; and
• maintain privacy and security of patient health information

Other benefits of EHRs include a printed record legible to all; electronically created and transmitted prescriptions; one comprehensive location of the patient's records for all providers; and ease of access of patient information across mobile devices.

One would think that these benefits should lead to fewer health disparities and, by extension, less malpractice litigation. I focus here on several problems that a podiatrist may encounter with malpractice litigation in the age of EHRs.

When The Record Is Not Worth The Paper It Is Printed On

Consider this scenario. You enter the examination room where your assistant has already placed the patient, sans shoes and socks, in the examining chair. The assistant has also opened the EHR for the patient and started a new encounter record for you to complete. Now you are facing your patient and exchanging pleasantries. Next to you is your screen showing the new note containing a lot of pre-populated fields from entries made at prior visits, default responses awaiting change if necessary and perhaps areas on the screen that require typing additional information. In addition to history and medications, the findings from the previous visit are already pre-populated for the present visit. There is an old paper chart for the patient but you did not pull it for the visit.

Someone told you that you should incorporate the information in the old chart into the new EHR but it did not happen. After the usual repartee, you conclude that the patient is doing as well as expected with no complications but with the usual complaints as expected following surgery three weeks earlier. There is not much to document. The note ends with a pre-populated "progressing as expected, return in two weeks or earlier if needed," which you do not change.

What was probably a seven-minute encounter with the patient (with no suggestion that you should have spent more time for a visit of this nature) results in two pages filled with a lot of words, most of which the computer placed on the page without any action other than the opening of a new encounter note. There is also some information you may or may not have entered, either by way of a pull down menu or multiple choices, and maybe some free writing via your keyboard. You say goodbye to the patient and she leaves. One of your staff cleans the room and closes your entry. The record for that visit is now complete and will live on forever somewhere inside your computer, or more likely in a cloud-based system.

A year later, the attorney representing your former patient is reviewing the record you furnished after receiving the appropriate HIPAA release. Although you think you were well served with your EHR, the attorney has a plan to show the record is not worth the paper it is printed on and will use it to strengthen the patient's claim of malpractice against you.

Incorporating Old Paper Charts Into EHRs: What You Should Know

No matter the nature of the alleged malpractice, this particular EHR scenario will likely make the podiatrist more vulnerable and less credible to a jury. The patient's attorney will first make sure he or she obtained both charts from the podiatrist. It is often the case that only the electronic notes go to the requesting attorney and these may lack consent forms, labs, biographical and history forms, patient questionnaires or the older paper chart. Assuming that claim involves information in the paper chart not carried through into the EHR, the attorney will go further in his or her analysis of both charts.

The first area vulnerable to criticism will be that nobody ever scanned the paper record into the computer system and saved it as a simple PDF document. It is even more problematic for the podiatrist if that paper record was in storage and not even on the premises of the podiatry office. It should be easy for any software to have a hot button to open a specific document or at least open a dialogue box so one can retrieve the old chart in PDF format from memory, open it and peruse it.

The attorney will proceed to compare the history and medications in the EHR to those in the paper record to see if they are consistent. The attorney will then compare exam findings for consistency. Did the podiatrist document the patient's flatfoot deformity in the paper chart but forget to get that information into the EHR? The same is true of reflexes, vascular status, range of motion and other examination findings. More often than not, the defendant in a malpractice suit will say the old record was not needed but was available if needed. The defendant will also indicate there was no set practice in place to incorporate the record - in whole or in part - into the EHR.

If there is a prior written record, it is highly likely that the patient has some, if not a long, history and for the most part, the podiatrist's memory of the patient and his or her history is more than adequate. Simply asking the patient at the beginning of the record creation if he or she has any pertinent history is usually adequate. Pulling older paper charts just to have them available, even for routine visits, is actually counterproductive and can lead to lost or misfiled records, defeating the purpose of an EHR. Going through an old record merely to compare scientific findings, which likely have no relevance, is unreasonable to expect.

While one should have a system for deciding what to forward from the old chart into the EHR, the fact remains that not doing so is irrelevant unless the claim is one for not being aware of something from the patient's past podiatric history. Absent that, the patient's attorney would just be leveling criticism for the sake of criticizing.

A Word Of Caution On Pre-Populated Or Cloned Responses

Another issue that exposes the podiatrist to effective criticism in front of a jury is the pre-populated information and default responses (i.e. normal findings) created each time one opens a new entry. Showing a jury that the majority of the information in the majority of visits is identical would tend to show that one created the record without regard to this patient. It is often effective to point out inconsistencies, errors or wrong information that now carries over visit to visit.

Pre-populated historical information is something not worth criticizing because a jury can easily understand the importance to have that kind of unchanging information to repeat from visit to visit. However, pre-populated complaints, symptoms, examination findings, assessments and diagnoses, and instructions are usually fraught with inconsistencies and errors.

One example is that of a patient with diabetic neuropathy yet some pre-populated portion of the chart says that in the examination the patient's feet were neurologically normal. Another example is that of a patient with longstanding hallux limitus but the range of motion findings default to normal, and the examiner leaves it that way. These kinds of inconsistencies and errors make the EHR less reliable. Accordingly, the lawyer will argue that the podiatrist is careless in his or her recordkeeping, and is therefore unreliable and less credible as a witness.

A poorly executed EHR that contains mostly default information with little applying to the patient for that visit is a serious problem. However, the first step is to determine what default information is not applicable to the patient at that time and what default information does apply.

One could argue that pre-populated historical information is very valuable and having it repeat on each visit permits one not to waste time going through prior notes. Identical examination findings are nothing unusual in podiatry. For example, muscle strength and range of motion will likely remain consistent from visit to visit. If they are not, it usually means that problem brings the patient into the office for that examination and then, based on the examination, present findings may be different from previous findings. However, just because EHRs for multiple visits appear identical, it is unfair to suggest that the podiatrist did nothing other than open a new record with the computer doing the rest.

Even if the EHR is not 100 percent accurate, a jury should be more accepting of it if they understand how the podiatrist created it. In other words, make the EHR more human. The podiatrist would be well advised to describe to the jury how he or she goes through the creation of the EHR, even printing each screen to show the menus and fields that are complete, and how he or she goes about doing so.

When The EHR Is Part Of A Larger Medical Practice

Consider this scenario. Your practice is no longer a private, standalone practice with your own computer system sitting in the closet next to the X-ray machine. Instead, you have joined a comprehensive medical practice and that practice is linked to a hospital. As part of the contract, every provider in the system, including you, has to use its EHR. The practice promised you it will modify the software to make it more podiatry friendly so you have the necessary menus and multiple choices available with the terminology you use.

One of the touted benefits of EHRs is the ability for all providers for a patient to have access to everyone else's records. One can now track medications among providers to avoid conflicts and interactions that may harm the patient. Alerts are even built into the system so you cannot issue a prescription for medicine to which the patient may be allergic.

Should you have concerns being a part of this kind of healthcare system as it pertains to the EHR?

In most podiatry malpractice cases, one need not be too concerned with the patient's medical conditions unless they impact the pathology in question and its management, or the patient's injuries. For example, in a case involving a bunion correction gone bad that led to a hallux varus, the case is not likely to be impacted by the patient's thyroid condition, hypertension or the medication she takes for endometriosis. However, there are cases in which the patient's non-podiatric conditions are directly related to the podiatric treatment. There are cases in which the patient sues a podiatrist and physician together for cases involving conditions, such as diabetes and infections, which are common to both.

Prior to EHRs, the podiatrist would obtain a history and a list of medications exclusively from the patient. While medical clearances are sometimes necessary for surgery, many clearances only involve routine blood tests and an EKG, requiring little contact with the patient's physicians or his or her medical records.

However, in the scenario described above, the EHR for every one of the patient's physicians is now available to the podiatrist with one click of the mouse. The patient's attorney will argue that given the comprehensive nature of podiatry education and training, there is no reason why the podiatrist should not review the medical records of other healthcare providers.

The defendant in a case may face cross-examination on the medical courses taken during the four-year program he or she completed at the podiatry school. The school may even have a brochure that states its "curriculum is similar to those at other medical schools." This curriculum may include courses on molecular biology, chemistry, immunology, pharmacology, biochemistry, histology and gross anatomy, including full cadaver dissection, infectious diseases, pathology, pathophysiology, pharmacology, biochemistry, cell biology, genetics, physiology and biology.

After the defendant podiatrist admits taking the required podiatry courses and that he or she rotated in her three-year residency through six hospitals, a jury will be primed to believe that the podiatrist has the training and education to absorb the content of his or her patient's medical records. In fact, an attorney will argue that while the standard of care for podiatry does not include making diagnoses outside of podiatry, it is part of the podiatrist's education and training to be knowledgeable as to the meaning of diagnoses outside of podiatry that impact on foot pathologies and their management.

After establishing this foundation, the attorney will then argue that the podiatrist failed to be aware of the contents of the EHRs from the patient's other healthcare providers. For a patient with diabetes, one can prove that it was a deviation from accepted standards of care not to be aware of the patient's A1c level when it was easily available in the patient's EHR. The patient's attorney will argue that the podiatrist took this easy step and therefore deprived him- or herself of the necessary knowledge of the patient's other medical issues that contributed to the injury the patient suffered.

Similarly, the attorney will argue that the patient was relying on the fact that all of his or her healthcare was being coordinated under one roof where all providers are connected and linked to everything there is to know about the patient medically.

It is true that comprehensive EHRs as described here may change due to the nature of the podiatric practice and how it interacts with other specialties. It would be important for the podiatrist to be aware of those conditions, diseases, medications and the like that impact podiatric treatment. To counter some of the suggestions from the patient's side of a case, it might be said that if the EHR was available to the podiatrist, it was equally available to all of the other healthcare providers who are part of that system and that the patient did not sue those medical providers for not being aware of the podiatrist's course of treatment.

For example, consider a case involving a proposed surgery on a patient with diabetes whose blood sugar levels were high - surgery that one could postpone - and the other providers, despite seeing the podiatrist's notes leading up to the surgery, did not step in and recommend against the surgery. If what the patient claims is valid, then the patient should sue all the doctors for malpractice because they all knew or should have known of the high blood sugar levels and the fact that the patient was heading into surgery. The point is that it becomes unreasonable to argue that the podiatrist should be reading other providers' records if the others are not reading the podiatrist's records. Notwithstanding a defense position on the topic, the electronic availability of a patient's entire medical record will change the complexion of all practices.

Final Recommendations

1. Know how to use your own EHR program. Know the limitations of the program. Make sure you know how to enter exactly what you want and do not allow the software to decide.
2. Use pre-populated information but on a limited basis. Keep it simple. Use it for history and medications. Permanent diagnoses (e.g., diabetes) are fine but do not allow every previous diagnosis to appear automatically for each new entry.
3. Do not use a program that automatically pre-populates examination results with normal findings. Instead, use a program that forces you to choose the correct response for each part of your examination.
4. Make good use of free typing to make up for what the program does not provide.
5. Have a formula or standard for the incorporation of old paper records into the EHR. Do not be in a position of not having a good response to the question: "So how did you go about incorporating my client's older, paper records into your EHR?"
6. Take the time to review the entire EHR if it is linked to other healthcare providers and pay particular attention to those conditions that may impact podiatric treatment.

Long gone are the days when most physicians carried patient charts into exam rooms and jotted down their findings by hand. In some ways, electronic health records (EHRs) have simplified the record-keeping process, but they also may have rendered it more complex and risky.

Research indicates that malpractice lawsuits associated with EHRs have edged upwards, intensifying the need to heed red flags. Awareness of potential problems stemming from the ins and outs of new technology can help physician practices avoid legal repercussions.

Although EHRs were cited in only 1% of a sample of lawsuits closing between 2007 and 2013, the number of EHR-related lawsuits doubled between 2013 and 2014, according to a recent analysis by The Doctors Company, a physician-owned national medical malpractice insurer in Napa, California. The insurer predicts this issue will become even more pronounced in the next few years.

"This is due in part to the reluctance of some major vendors to openly discuss design flaws and work with users to make improvements that facilitate work flow and minimize disruptive drug alerts," says David Troxel, MD, medical director of The Doctors Company.

PIAA, the trade association that represents medical liability insurers, suggests that clinicians exercise greater caution with vendor agreements. "Vendor contracts may shift liability resulting from less than ideal software design from the vendor onto the user, so we recommend that healthcare professionals read all contracts carefully," says P. Divya Parikh, MPH, vice president of research and risk management at PIAA, formerly known as the Physician Insurers Association of America, in Rockville, Maryland.

In navigating EHR systems, physicians often encounter drop-down menus that address the most common scenarios and omit less frequent ones, while some auto-correct features and auto-population of data fields-intended to speed up the process- inadvertently lead to incorrect information input, she says.

Incorrect data input and other user errors rank as the leading reason for EHR-related malpractice claims, according to The Doctors Company. From January 2007 to June 2014, 64% of the insurer's 97 closed EHR-related malpractice claims involved user errors, while 42% were attributed to system factors. (Some claims had more than one contributing element, accounting for why the two categories do not add up to 100%.)

The most frequent user mistakes stemmed from inaccurate data, hybrid health records (existing in both paper and electronic form), EHR conversion, and issues pertaining to copying and pasting information. Less common issues in this category could be traced to user error, training and education, EHR alert fatigue, and workarounds, according to the report.

A busy physician may be inclined to forego rewriting a patient's pertinent medical history and current physical findings. "It's a real temptation to copy the prior note and paste it into the current visit, and then hopefully, go through the newly pasted version and delete things that are no longer relevant, and add what's new," Troxel says.

Too often, however, disruptions impede a physician's intentions to delete extraneous information, resulting in longer notes that bury significant new details and increase their likelihood of being overlooked. "If you have any erroneous or dated information in there, it gets perpetuated and takes on a life of its own," he says.

Diagnosis failures and medication errors were the top allegations among all EHR-related claims in The Doctors Company's report. Medication mishaps involved allegedly prescribing incorrect medications, ordering an inappropriate dosage, or improperly managing the patient on the medication.

Preparing for unexpected risks

Of the system-related EHR claims, 10% were associated with technology and design issues, such as the formulary and templates not being up-to-date. Electronic systems/technology failures-which occur, for example, when lab or radiology computers are unable to communicate with the main EHR - contributed to 9% of cases.

An additional 7% of cases involved lack of an EHR alert or an alarm/decision support tool. Other complaints spanned the spectrum from faulty data routing to inadequate scope or area for documentation, to fragmentation of similar information (lab and imaging test results) being stored in different areas, according to the report. Some claims contained more than one contributing factor.

Specific internal medicine subspecialists-cardiologists, hospitalists, oncologists and gastroenterologists-were most likely to face EHR-related claims, representing 20% percent of cases all together. Family physicians and general internists were accused in 16% of cases, while obstetricians/gynecologists incurred claims in 15% of cases.

The rapidity of EHR adoption has resulted in major and often unanticipated risks. For example, without proper backup of files, losing the entire electronic copy of all medical records is within the realm of possibility. Ideally, a physician should back up data to an off-site server at least once every day, says Dean F. Sittig, PhD, co-editor of the 2015 book, "SAFER Electronic Health Records: Safety Assurance Factors for EHR Resilience."

"The more reliant you are on your computer and all the data it contains, the more precautions you have to take," says Sittig, a professor in the School of Biomedical Informatics at the University of Texas Health Science Center in Houston. Also, in performing a self-assessment of your system, "you have to be really be honest with yourself" and perhaps admit, for instance, that weekly backups are inadequate.

Information overload often results from the sheer volume of important messages a physician receives about patient care. There is also an increase in mandatory clinical documentation tasks. Adhering to Meaningful Use requirements, physicians need to indicate the smoking status-using a checkbox or some other form of structured documentation-for all patients. "The rules have changed, and there's a lot more to record now," Sittig says.

Extensive data-keeping has elevated the level of responsibility and accountability for physicians as a result of extensive EHR adoption.

There is "a lot more transparency of information that wasn't there before," says Hardeep Singh, MD, MPH, chief of the health policy, quality and informatics program at Michael E. DeBakey Veterans Affairs Medical Center and Baylor College of Medicine in Houston, and the other coauthor of SAFER Electronic Health Records. "With electronic records, physicians have to realize that now we have a window into a black box that can show who has done what and who has seen what."

An EHR can track the length of time a physician spends on various tasks, such as meeting with a patient, based on starting and signing off on a computerized note. In a situation where both the primary care physician and the specialist miss abnormal test results, the EHR can audit if one or both had reviewed the findings, Singh says.

When used correctly, EHRs actually can help physicians defend their care by documenting decisions and the rationale for making them, says Mariel Taylor, JD, a healthcare litigation attorney at Greensfelder, Hemker & Gale PC in St. Louis and a member of the American Bar Association's Medicine and Law Committee of the Torts, Trial, and Insurance Practice Section.

For example, some EHR systems prompt physicians to fill out templates or forms explaining why they are overriding each particular drug interaction alert. "That could be very helpful in their defense" if a malpractice lawsuit ensues over a patient's allergic reaction, Taylor says. Conversely, simply ignoring alerts without proper written explanation "can look bad before a jury."

Establishing guidelines for email correspondence with patients also would be a prudent measure. Taylor suggests asking patients to sign a consent form stating that e-mails don't replace office visits and are not to be used in emergencies because physicians may not see the messages in time. This lets patients know what to expect. "A patient is more likely to file a malpractice suit if they feel like their doctor ignored them or wasn't communicating with them," she says.

In making the transition from paper to electronic records, quality assurance procedures should be put in place. During the transitional period, Taylor recommends cross-checking paper and electronic records to ensure there aren't any gaps.

Physicians should select an EHR program with templates that are useful to them in accurately documenting a patient's care, rather than a system with numerous data fields that don't serve their needs. In addition, Taylor notes that "there has to be a way for the program to highlight critical findings, so they don't get lost in a big, lengthy document that contains a lot of irrelevant information."

Other useful features in some EHR systems allow for tracking a primary care physician's referrals to specialists and documenting informed patients' consent before procedures. The options vary considerably, says Adam Wright, PhD, an associate professor of medicine at Harvard Medical School who specializes in electronic health records and clinical decision support systems.

"Some have a lot of decision support built into them; others are blank canvasses or blank slates," he says. "You have to decide which things you care about." For example, an EHR system can be tailored to notify patients when they are due or overdue for colonoscopies, mammograms, Pap smears ,or flu shots.

EHRs have a ways to go in making modifications. "EHR is on a continuum, and the maturity of the electronic medical record is definitely in its infancy," says Luke Sato, MD, senior vice president and chief medical officer at CRICO/Risk Management Foundation in Cambridge, Massachusetts.

Vendors should consider building some sort of intelligence into their systems that would help a physician "identify what's critical, what's important, and what needs to be acted upon," he says. "Currently, the physician has to do all that work."

Detrimental design?

Differences in design among EHR systems also can create conundrums. As vendors try to iron out the kinks, "there's a lot of effort being put forth to keep EHRs from becoming complicated and overwhelming for healthcare professionals. Ideally, they should be more streamlined and universal," says Parikh, who also notes a growing consensus to limit the number of intrusive and distracting pop-up messages that physicians receive.

Upgrading to a newer and more user-friendly platform is fraught with challenges as well. Andrew Carroll, MD, FAAFP, of Renaissance Medical Group LLC in Chandler, Arizona, is converting to a third EHR system since opening his solo family medicine practice in 2003. Back then, there were few EHR options. Nine years later, the range of choices had greatly increased, and he switched to a new program. This summer, he changed once again.

"There's a learning curve, obviously," says Carroll, immediate past president of the Arizona chapter of the American Academy of Family Physicians. "We don't want things to fall through the cracks, so we're trying very hard to make sure that the transition to the new software is inclusive of the data we had previously." This transition has entailed paying a vendor to perform the data migration from the old system.

"In Carroll's experience, "it's very important to shop as many products as you possibly can" before selecting the right one for your physician practice. "Do not make a decision based on the cost, or what your friend is using, or what the healthcare system wants you to pick," he cautions. "Make sure you pick the software that best integrates with your mode of care. Don't look for the software that you need to adapt to; look for software that adapts to you."

The EHR system in Carroll's practice includes a robust patient portal. By entering encrypted passwords, patients are able to access their own medical records at home and review his notes from their office visits. They can update their medication lists for him to approve or correct as necessary. This way, he says, "the patient is fully invested in the medical record," and any discrepancies are caught soon after they occur.

In the closing session at AHIMA's CDI Summit in Alexandria, VA, on Friday, attorney Marion Munley, Esq., a medical malpractice lawyer who delivered her presentation via Skype, shared cautionary tales and disquieting concerns about the inherent patient safety risks related to electronic health records (EHRs).

EHRs, Munley explains, "are sold as a panacea to us the consumers, but in reality there are many bugs and obstacles that need to be worked out before we're assured of patient safety."

Some high-profile cases where EHR errors led to the death of a patient include the case of an Illinois infant who was erroneously administered 60 times the prescribed dose of sodium chloride due to a conversion error in the EHR. This caused the infant to suffer a heart attack.

Another more high profile case is that of Thomas Duncan, who died from complications of Ebola in Houston, TX. According to Munley, a nurse properly documented that Duncan had been in Liberia (a risk factor for Ebola), but the treating physician wasn't able to see that in his chart. As anyone who followed the news at the time knows, Duncan was discharged but returned to the hospital a couple days later before succumbing to the disease.

As an attorney, Munley says the most common EHR and documentation errors she sees are data entry errors, copy and paste mistakes, errors related to wrong clicks, failure of a physician to verify notes, errors caused by software updates, intentional destruction of records, and mistakes precipitated by clinical decision support alert fatigue.

Training Key to Preventing EHR Malpractice Suits

EHRs are more vulnerable to patient safety errors in the time periods immediately preceding or following software updates and go-live dates, Munley said, which means staff need to be properly trained and remain vigilant during these times.

She emphasized that if harm befalls a patient due to a glitch in the technology she will look for evidence showing whether or not clinicians have reported the issue to the vendor.

"Why didn't doctors know there was a flaw? Why did they knowingly put a patient at risk? Or, if the doctor was aware of the flaw but made no attempt to have it corrected, it could be argued that he or she knowingly put the patient at risk," Munley said. "For example, if a barcode scanner has an issue, that's something that could be easily rectified. If it's not being paid attention to, there's going to be a whole lot of questions about who knew what when."

Proper training will also help protect hospitals and healthcare organizations when an e-discovery process is initiated. When Munley requests hard copies of patient records for her clients, she's not seeing the whole picture.

"Unlike paper records, changes made to EHRs cannot be observed with the naked eye," Munley said. "If a family member or attorney requests files from EHRs, the printed out version won't show the audit trail. If a member of the staff provides patients with printable versions that are incomplete, it can be detrimental to the provider's defense."

A greater percentage of doctors are unhappy with their electronic health records than five years ago, according to a survey from the American Medical Association (AMA) and AmericanEHR Partners, a free online resource for the medical community created by the American College of Physicians (ACP) and Cientes Technologies.

The 155-question online survey of 940 physicians, conducted between May 30, 2014, and July 18, 2014, found that roughly half of all respondents reported a negative impact in response to questions about how their EHR improved costs, efficiency or productivity. In particular:

• 42 percent thought their EHR system's ability to improve efficiency was difficult or very difficult
• 72 percent thought their EHR system's ability to decrease workload was difficult or very difficult
• 54 percent said their EHR system increased their total operating costs
• 43 percent said they had yet to overcome productivity challenges related to their EHR system

The survey corroborates other reports about physicians' problems with their EHRs. The AMA recently held a town hall meeting to enable physicians to voice their frustrations and launched an initiative to encourage them to "share their stories" with members of Congress.

"While EHR systems have the promise of improving patient care and practice efficiency, we are not yet seeing those effects" Shari Erickson, vice president of ACP's division of governmental affairs and medical practice, said in a statement. "We need to focus on figuring out how we can help physicians and practices to more effectively implement and use these systems."

The survey also found that primary care physicians were happier with their EHRs than specialists. This may be because they've used their systems for a longer period of time. In most cases, it takes at least three years for physicians to see the benefits of EHRs, according to the survey.

Electronic health records have potential, but their benefits won't be achieved without significant upfront costs by providers, patients and the federal government, according to a new analysis from the American Action Forum, a nonprofit think tank.

The analysis finds that the hardware, software and labor costs for a solo practitioner to transition to an EHR are about $163,765, and $233,298 for a five-person physician practice. However, physicians were not yet seeing a payoff, with increased costs at least for the first three years after adoption.

Productivity declined an average of 15 patients per doctor per quarter. However, reimbursement increased, not because of upcoding but because of the increase in billing for ancillary procedures; physicians were receiving more money for treating fewer patients, which was "not the intended result" of EHRs.

Other roadblocks negatively impact the value of EHRs, as well. The high number of physicians (60 percent) planning on replacing their systems in 2015 will delay interoperability. Information blocking also remains a problem, which will require a "complicated policy solution" to bring the players together to benefit "society as a whole."

In addition, the costs of information security are high, estimated at $50.6 billion in less than six years. And the dramatic increase in the average number of records compromised in a single security breach is "alarming" and may be a consequence of the more connected healthcare system being strived for.

"Widespread use of electronic medical records could bring beneficial change to the healthcare system in a variety of ways, largely because they are the foundational piece to many technologies and analyses that could change healthcare delivery," the authors say. "All of these potential advances could greatly improve health outcomes and help bend the healthcare cost curve. Unfortunately, these advances come with significant costs, both financially and in terms of personal privacy."

The analysis corroborates other studies that indicate EHRs have made strides but are not yet delivering as promised.

To learn more: - read the analysis

The erroneous autocorrect, the restrictive dropdown menu, the deadly software glitch: anecdotal evidence of computer foul-ups abounds in the literature on electronic health records (EHRs) and medical malpractice awards.

It may be too early to say whether EHRs have increased or decreased liability for physicians as a whole, mostly because settlements lag so many years behind treatment, but some say the technology generally reduces total medical errors (though not as much as predicted) and has no effect on insurance rates.

At the level of the individual practice, however, EHRs can increase malpractice liability-if those practices fail to recognize the major risks associated with the technology and adopt policies that minimize those risks, experts interviewed for this article said.

The fundamental transparency of EHRs makes it harder to camouflage actual mistakes, they said. It also makes it harder to camouflage sloppy work habits or even to justify good work habits that can be made to look sloppy in court. Defending malpractice lawsuits, therefore, requires not only a commitment to good care but a commitment to the unimpeachable documentation of good care.

"EHR vendors initially promised better notes with less work, but the truth has largely been the opposite. A typical physician probably needs to spend an extra working hour every day to produce records with far more extraneous information but far less core content," said James J. Stark, MD, founder of Stark Oncology Consulting, in Suffolk, Virginia.

"It is an added hour of the most tedious possible work. It generally produces no benefits to patient care, and it generates zero extra reimbursement, so there is a tremendous temptation to cut corners with copy-and-paste and other shortcuts. Physicians who want to avoid malpractice verdicts must resist that temptation. They must accept each day's wasted hour as a cost of doing business. Those who don't can rest assured that lawyers will eventually tear their records apart, creating the appearance of malpractice even in the absence of actual malpractice."

While the logic of that advice is clear, doctors, nurses, and administrators, at some point, may become so overwhelmed with professional or personal obligations that they do begin to cut corners.

Practices, therefore, must create specific policies concerning the record-keeping obligations and implement safeguards that prevent workers from shirking those obligations, experts said. Good software can certainly help. It can, for example, send out alerts when users fail to do the bare minimum, but it still takes humans to distinguish good records from the shoddy notes that can endanger a practice.

Audits Help With Troubleshooting and Training

The Oncology Institute of Hope & Innovation, an independent practice with a dozen offices in and around Los Angeles, conducts regular audits of patient records. Audits are time consuming, but they go faster with EHRs than with paper records that are stored off-site, and they minimize the risk of problems related to either lawsuits or billing.

"It's rare to find a problem, but the auditing process is still valuable for a number of reasons," said Matthew Stevens, the Oncology Institute's General Counsel and Compliance Officer. "It allows us to evaluate how well we're training people to use the software and to make improvements. It also allows us to find problems before they come up in lawsuits or billing disputes and, quite often, to correct them. Finally, it gives everyone a strong incentive to be diligent about keeping the sort of good records that impress auditors."

Early EHR advocates predicted that system users would require much less oversight by administrators and one another. They said smart software would automatically force users to keep good records (or automatically warn administrators in the event of failure), and thus reduce malpractice awards by making poor record keeping nearly impossible.

Early EHR advocates said that software would eliminate a wide range of errors that were possible with paper records, but many of their predictions have yet to come true. EHR usage is generally associated with fewer medical errors, but many mistakes that programmers promised to make "impossible" still happen.

"EHRs have truly eliminated a few simple errors, like those arising from illegible handwriting, but once you get past that, they've created trade-offs for practices to consider. If you set a system up to warn you of every possible error, you'll waste countless hours on erroneous warnings and learn to ignore the warnings. If you set the system up with virtually no warnings, you risk mistakes you could have avoided," said Sandeep S. Mangalmurti, MD, JD, the lead author of a much-cited article that warned readers of the New England Journal of Medicine back in 2010 that EHRs might end up increasing medical malpractice suits.

"The clinical decision support is even more problematic. 'Teaching' systems enough about balancing standards of care against individual patient needs has proven exponentially harder than many people anticipated. Such features probably have some value when they prompt users to consider something they'd forgotten, but we're far from the point that healthcare providers should lean heavily on the decision algorithms. We're not even at the point that EHRs can reliably spot when you mistakenly chose 'twice daily' rather than the neighboring 'daily' on a drop down menu."

A Need for More Flexibility

Another problem with the dreaded drop-down menu and other EHR features designed to prevent doctors from doing the "wrong" thing arises when physicians try to override them. Some systems make it very hard to order anything unusual, even something as small as a low dose of medication for a patient with renal or hepatic failure. Practices need to have tools that allow such decisions and convey them clearly through the system so caregivers don't mistakenly revert to defaults.

It is also highly recommended that systems have policies on documenting the reason for overriding recommendations. Each time a doctor deviates from EHR guidelines designed to reflect standards of care, the system's implicit disagreement with the decision could be used as evidence in a malpractice suit. In other words, a system acquired to reduce medical errors and defend against lawsuits could become an effective witness for the plaintiff. The only way to minimize potential damage from such evidence is to document a full understanding of the system's reasoning and produce a full explanation for the disagreement-and to do it in real time. A note typed before something goes wrong necessarily demonstrates that a doctor at least made an informed decision. A note typed afterward does not.

Indeed, according to Mangalmurti and others, time plays a greater role in guarding against EHR-related lawsuits than many physicians realize. The detail that such systems provide when users undertake any action can be extraordinarily revealing. They can, of course, show whether a physician truly did read a vital part of the record, check test results, or read an X-ray before deciding on a course of treatment. They can also reveal just how long a doctor spent studying the record and reading the X-ray before making the decision, a feature that leaves doctors open to second guessing.

Practices that wish to minimize the risk of liability related to timing need policies that demand not only that users read records fully and document their own actions thoroughly, but also that they do so within timeframes that courts typically deem reasonable. They also need training that conveys to all users just how much detail EHRs can provide about timing and how bad it looks when they do or say anything that EHR data or metadata can disprove, even if it's just misremembering how long they spent looking at something.

Mangalmurti's 2010 NEJM article warned of these risks, even though it appeared at a time when less than 10% of the nation's medical practices used anything beyond the most basic EHR systems. It anticipated an even greater risk, however, in periods of transition, when practices are just adopting new systems. Many service providers have since passed through that initial transition, but the dangers remain for the many practices that still use paper records and the many others that will switch to a new EHR.

The Unfamiliar Is a Breeding Ground for Error

"The move from familiar to new systems increases error rates in basically every human endeavor. Unfortunately, case law to date provides basically no recognition of this fact," Mangalmurti said. "As a result, practices must plan for transitions incredibly carefully. They need systems to ensure that results and orders don't fall through the cracks, and they absolutely must provide effective training to everyone. System users should be fully comfortable with their new tools before they ever use them with actual patients."

Research to date on EHR-related liability provides little systematic information about how system records are being used in lawsuits, but the literature indicates that good policy and training has protected healthcare providers against liability related to e-mail and other electronic communication. When medical offices first started to go digital, many predicted that e-mail would lead to a variety of problems that ranged from insecure communications that violated the federal Health Insurance Portability and Accountability Act to questionable diagnoses based on written complaints rather than physical examination. Medical publications echoed with warnings. Practices responded with policies and training.

That said, new communications technologies bring new dangers, and the danger that has begun to worry some attorneys who defend malpractice suits concerns record-sharing among various medical offices. Many independent practices rarely share full patient records, for the simple reason that their software tends to be incompatible, but regulations designed to encourage interoperability may soon make it easy for practices to forward entire records.

Such capacity could provide physicians with more information about their patients, information that could improve the quality of care, but it could also create monumental new obligations.

"The record for a patient with a number of conditions could easily run to hundreds or even thousands of pages. It is clearly unreasonable to expect providers to read that much material on each patient that they see throughout the day. Therefore, providers will need to develop a consistent practice with respect to how they use and maintain both the information and the physical records," said Bobbie Sprader, JD, a partner at the Ohio-based law firm of Bricker & Eckler who specializes in defending medical negligence suits.

"When it comes to charting in the electronic medical record, I think we are a long way from having identified a best practice. For now, I would advise providers to protect themselves by taking advantage of the ability to enter free text whenever they can. A full 25 pages that do nothing but record drop box selections do not explain the thinking behind a decision as well as a single precisely worded sentence. Ultimately, 1 goal of a medical record is to communicate and the best way for caregivers to communicate quality care through the medical record is to record their findings and thoughts as clearly and effectively as possible," Sprader said.

We're familiar with the multitude of laws that dictate when and how to adopt and use electronic health records. There are 2,000 statutes and regulations related to electronic health information, according to Tara Ramanathan, a public health analyst with the Centers for Disease Control and Prevention, who spoke on a May 26 webinar sponsored by the American Bar Association Health Law Section.

But now we've begun to focus more on EHRs in the other legal venue: the courtroom.

The move was inevitable.

For years, people have been lamenting the "unintended consequences" of EHRs having an adverse effect on patient safety. So it makes sense that the patients suffering these consequences would start filing medical malpractice lawsuits against the providers using the EHR. The number of EHR-related malpractice problems has hit "critical mass," according to HL7's Reed Gelzer.

Unfortunately, both humans and computers are to blame for errors. There's not only sloppy copy-and-paste, failure to review automatic fill-ins and default templates, data entry errors and lack of training; there's also technology or system failures, design flaws and lack of relevant alerts.

But EHRs are having an impact in the courtroom beyond bearing witness or party to error. Evidently, electronic medical records are viewed differently from paper records, which has far reaching consequences in a lawsuit.

"Unlike paper records, where incomplete or illegible records are expected, with EHRs they're expected to be complete and immediately accessible and portable," explained attorney Rene Quashie, with Epstein Becker Green in the District of Columbia, who also spoke on the webinar.

Perhaps more significantly, EHRs are changing the nature of malpractice litigation. For instance, EHRs hold much more data than paper records. While that seems better, it creates more complexity and increases liability because it's easier to miss a small detail buried in the data; more access to clinical information could create new legal duties to act, such as to search patient information generated by others and available via a health information exchange, Quashie said.

EHRs may even change the "standard of care" required of providers. For instance, a physician who overrides an alert could be accused of deviating from the standard of care, even if the physician is acting appropriately and/or no harm occurred. Clinical decision support guidelines, despite being input into EHRs by computer programmers--not clinicians--could "solidify" the standard of care which otherwise might be subject to debate, Quashie warned.

"Failure to use an EHR may itself constitute a deviation from the standard of care," he said.

EHRs are great tools, and have already shown potential to improve patient health and safety. But they're new tools, and not unlike any new innovation, they take some getting used to and create some road bumps along the way.

EHRs not only are transforming how healthcare is performed, they're also on the cusp of reshaping the law surrounding that care. Are they the right changes? Or do we need to take a step back and reassess them?

For example, those in the weeds of the EHR-world know that EHRs can be manipulated so that the patient's records themselves are wrong. They may not even be sufficiently reliable to be used in court. So should they influence the standard of care?

The law is ever-evolving, albeit slowly, one statute and one court decision at a time. It also lags behind innovation, as Quashie pointed out. But there' a difference between lagging behind and changing direction. If that's the case, let's hope jurisprudence is choosing wisely. - Marla (@MarlaHirsch and @FierceHealthIT)

As electronic health records become more common, they increasingly are being relied on in medical malpractice litigation, often to the detriment of the provider.

Reed Gelzer, M.D., co-facilitator of HL7 EHR Records Management and Evidentiary Support Profile Standard Workgroup and head of Newbury, New Hampshire-based consulting firm Trustworthy EHR, shared his insights on this growing problem in an exclusive interview with FierceEMR.

FierceEMR: Why are EHRs being used more often in malpractice litigation, and why are they creating more legal problems for providers than paper records?

Reed Gelzer: Until three or four years ago electronic records were not ubiquitous. Now there is critical mass. And in medical malpractice, there's also a lag in change in the legal process. The kinds of effects we predicted to occur now are occurring.

FierceEMR: What's going wrong?

Gelzer: There are design errors and human errors. For instance, a physician prescribed a medicine to which the patient was allergic; a nurse had documented the allergy, but the EHR didn't show the doctor about the allergy until after the record was completed, since the EHR needed the doctor input first to complete the record. The patient had a bad reaction and sued. It was a dysfunction in the EHR, and a lack of understanding of how the EHR worked.

Other problems stem from [misuse of] copy and paste [which creates an inaccurate record].

Another problem is gag clauses in vendor contracts. Vendors will often stipulate if you observe problems, you can't report them.

FierceEMR: You've warned before that the data in EHRs are so inaccurate that they shouldn't be used in court. Does that apply here?

Gelzer: If subjected to scrutiny, most EHRs will be found wanting--but only if someone looks. Many systems are poorly designed for simple records management support, as well as evidentiary support. But the definition of authenticity is made on the basis of legal process and varies from state to state. For example, in Minnesota records from healthcare organizations are deemed self-authenticating.

FierceEMR: How does this dovetail with the Meaningful Use program?

Gelzer: A lot of organizations have implemented EHRs under Meaningful Use and accepted money from the federal government with the assumption that EHRs were fit for use as patient records. But there's no assurance that Meaningful Use relieves [providers] from the due diligence burden that the systems work as intended. Many chose an EHR because [they believed] if it was certified, it was fit as a patient record. And that's not what it conveyed.

It's a big problem. And it's taxpayer subsidized.

This interview has been edited and condensed for clarity.

CHICAGO -- As electronic medical records (EMRs) proliferate under federal regulations, kludgey workflow processes and patient data entry quality can be problematic.

The inherent issues with EMRs -- and for the healthcare professionals required to learn them -- hasn't been lost on lawyers, who see the potential for millions of dollars in judgments for plaintiffs suing for medical negligence.

Keith Klein, a medical doctor and professor of medicine at the David Geffen School of Medicine at UCLA, described four such cases where judgments reached more than $7.5 million because the data contained in an EMR couldn't be trusted in court.

Klein, who spoke at the Healthcare Information Management Systems Society (HIMSS) conference here today, said he has served as a legal expert in more than 350 medical lawsuits in state and federal courts. And while medical malpractice cases have so far focused on physicians and hospitals, Klein said technology vendors are next on the list.

"There are attorneys now looking for a clean case to sue the vendor," he said. "This is reality. It is not theoretical. I was approached by Washington, D.C. law firm who had a very clean case for suing a vendor."

Klein declined to be an expert in the case, but the problem will persist.

EMRs require physicians to perform their own data entry, stealing precious face time with patients. What had been a note jotted into a paper record, now involves a dozen or more mouse clicks to navigate a complex EMR workflow.

Healthcare providers can be prone to taking shortcuts on entering the data or not entering it in a timely manner, Klein said. Vital sign data is often duplicated as it moves between hospital departments, but it remains part of one integral patient record.

"This is a fire hydrant," Klein said. "Try to take a drink out of it. That's what it's like trying to read an EMR."

One recent lawsuit involved a patient who suffered permanent kidney damage when he was given an antibiotic to treat what was thought to be an infection resulting in elevated creatinine levels. The patient was also suffering a uric kidney stone, which precludes the use of the antibiotic. Because of the complexity of the EHR, none of the attending physicians noticed the kidney stone.

Detracting from the EMR's validity was the fact that a date related to a previous intravenous drip was repeated over and over on all 3,000 pages of the record.

While his physicians claimed they'd documented his care properly, the EMR was so complex and filled with repetitive data, the judge found it in inadmissible. "When an electronic medical record is printed out, the amount of repetitive data in it is ridiculous," Klein said. "Attorneys are having conferences on how to attack EMRs.

"All these cases were from top vendors. We're talking about well-established ones used at Kaiser [Permanente], at the VA... and academic institutions," Klein continued. "These are not rare cases. These are common things."

In another case, the physician was accused of plagiarizing data entered from another healthcare provider because he copied and pasted basic patient information.

Rita Bowen, senior vice president of health information management for Healthport in Atlanta, a records audit management and tracking technology firm, said she's seen duplicate data, erroneous data and copied data in EMRs.

"I've seen records where someone has copied and pasted from older records, 'The IV will be removed today,' over and over again. Well, was it removed?" Bowen said, illustrating how admins may copy and paste older information into newer records.

In fact, when it comes to strong information governance, Bowen said most healthcare facilities are woefully behind in rolling out rules and standards and ensuring they're adhered to.

But the problem isn't solely human error. The way EMRs and electronic health records (EHRs) are designed can prompt error-prone entries. For example, drop down menus for diagnoses can automatically enter data if a mouse is hovered over them too long.

"We've seen 92-year-old women getting diagnosed as crack addicts because of drop down menus," she said.

While Klein and Bowen readily defend the implementation of EMRs and EHRs as both time savers and records that increase mobility and accuracy when used properly, vendors should also be working to reduce complexity and introduce safeguards.

For example, when data is copied and pasted from one page of a record to another, some EMRs highlight that entry until an attending physician or nurse has verified it.

The use and design of a provider's electronic health record can have an impact on medical malpractice litigation, as shown by the recent misdiagnosis of the first Ebola patient in the United States, according to Sharon McQuown, R.N., MSN, LNCC, with the Law Office of Frank L Branson in Dallas, Texas.

McQuown, speaking at the American Bar Association Health Law Section's 16th Annual Conference on Emerging Issues in Health Care Law in Orlando March 6, pointed out that the focus of the problem was the misdiagnosis of the patient in Texas Health Resource's emergency department (ED), which caused the patient to be discharged the same day. He returned and was admitted three days later, confirmed to have Ebola, and died shortly thereafter. The malpractice suit was filed Nov. 12 and settled that day.

Much of the misdiagnosis in the ED was attributable to the EHR, McQuown said. For instance, the physician had access to the nurse's notes, which included the information that the patient had recently been in Liberia and that his vital signs had changed, but the hospital's audit trail could not confirm whether the doctor had read that section of the EHR. The travel information also was not highlighted in the EHR.

Additionally, there was a question about whether any face-to-face communication occurred among the providers before the patient's discharge, which might have also flagged the patient's travel history and vital sign information without having to rely on the EHR.

The hospital instituted EHR changes days after the patient died, including:

• Adding a new tool in the EHR requiring a "hard stop confirmation" by the physician that he/she had been told that the patient had recently been to a country of concern
• Creating a more robust screen that draws attention to travel with a red box on top and specific identification of countries traveled
• Adding a banner alert screen if a patient is flagged for infectious disease with an alert of steps to be immediately taken
• Changing the discharge process so that discharge papers could no longer be printed early or if anything was unresolved in the document.

Last October, Texas Health Resources Chief Clinical Officer Daniel Varga testified before Congress about many of the EHR changes the health system had made in the wake of the incident.

Texas Health Resources also made non-EHR changes, such as asking about travel history within 10 minutes at triage so that a potentially infected patient could be contained sooner. It also put more emphasis on face-to-face dialogue among providers.

McQuown noted that there's still a "fluid" learning curve regarding EHRs and patient safety, such as issues with cutting and pasting or default mechanism errors.

Other studies have shown that tweaking EHRs can make them more effective. However, Texas Health Resources is not yet out of the woods; Nina Pham, one of the nurses infected with Ebola by the patient has just sued the hospital for inadequate training and other issues.

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The American Academy of Family Physicians Family Practice Management Journal has released a report that said doctors are being forced to switch electronic health records (EHRs) and there is widespread dissatisfaction among physicians who have switched.

Most respondents claim that their new EHR does not improve productivity, and only 39 percent of physicians are happy with their new systems. Physicians cite revenue, productivity losses and traumatizing EHR transitions.

Among the reasons behind switching EHRs, respondents reported that the change was often not by choice, but was forced upon them. Physicians are quoted: "We were forced to [change EHRs] as part of the larger organization. [The] decision to switch was made at executive level. [It was a] business decision by hospital owner attracted to the product's billing and financial reporting, not driven by clinical users' interests."

The survey states, "Those who were personally involved in making the switch tend to look more favorably on their new system than those who did not make their own decision... Of the 140 respondents who said they were involved in the decision to change systems, 61 percent are happy with their new EHR; of those not involved in the decision, only 19 percent are happy with their new EHR."

The authors of the report add, "While our sample is too small to suggest winners and losers in the EHR marketplace, we do see some suggestive numbers. EpicCare Ambulatory and Praxis EMR had the most net gains in customers among our respondents," they explain. However, when user satisfaction was compared between the two EHRs, the difference was compelling. Praxis EMR eclipsed Epic and outranked all other Electronic Health Records systems.

EHRs can wreak havoc on a practitioner's clinical documentation of patient care, exposing the provider to malpractice claims, warns HIT author Ron Sterling, in an article posted on hitechanswers.net.

"Regardless of the legitimacy of care and treatment, the inappropriate use of EHRs and/or EHR design vulnerabilities are exposing physicians to questions on the quality of care and physician due diligence," he writes.

Some of the EHR documentation issues cropping up that can adversely affect patient care include:

Transitioning from paper records

If the patient information transferred from paper to electronic form is not structured properly, the record will be faulty, Sterling warns. For instance, if a patient's history is not included correctly during the transfer, then it may not generate necessary clinical decision support tools, such as alerts.

Note signatures

Some EHRs automatically close a record after a set time whether or not the note has been signed; others remain open indefinitely. Both situations raise questions regarding whether the doctor authorized care.

Templates, default settings and cut and paste techniques

All of these can lead to errors by incorrectly populating a patient's record.

Patient note amendments

An amendment made via free text may not end up showing up and refining the original note, so warnings based on the new information won't arise.

"Practices need to closely examine how the EHR is set up and used on a continual basis to maintain the efficacy of the patient records and efficiency of the practice," Sterling recommends.

The concern that EHRs and other health IT can affect patient safety has been on the forefront since the Institute of Medicine issued its report on the topic last November. A bill that would protect providers from malpractice and other liability if they used certified EHRs, entitled the Safeguarding Access for Every Medicare Patient Act is in the House Committee for Energy and Commerce.