E-Discovery in Medical Liability Claims
Part 2: What Your EHR Knows Can Hurt You
If a patient ever brings a claim against you, the EHR can support the defense of the claim. It can also be used by the plaintiff attorney to raise questions about your care of the patient. While thorough documentation of patient symptoms and treatment is vital, equally important is what the EHR’s metadata reveals about your actions.
Metadata is basically data about data. It stores information such as who created a record, how much time was spent creating it, when a record was changed, who made the changes and what the record looked like before the changes were made. Metadata may also show how much time you spent reviewing each alert prior to dismissing them. Depending on your EHR’s capabilities, metadata may store each and every version of a patient record.
The reality is that metadata is recording information about the way in which you practice. A savvy plaintiff attorney can use this information to question your actions during patient treatment. Following are some ways you can enhance the possibility that your EHR’s metadata will support you in the event of a claim.
- Since metadata can be used to show how much time you spend with a patient, log in to the patient’s chart as soon as you enter the exam room, even if you will not immediately be entering information.
- If you are making only brief notes at the time you see the patient and you plan to expand on these later, you may want to note this in the EHR. Then, when you later log in to the patient’s record (within 24-48 hours), indicate that you are adding the details referred to at the time of the visit.
- If an alert pops up while you are looking at a patient’s chart, review the alert before dismissing it. Make a note of your response, especially if you are disregarding an alert suggestion. If a particular patient’s record always gives you the same alert, and this causes you to quickly dismiss it, indicate this in your notes. You might check with your EHR provider to find out if the alert can be disabled. (If it is disabled, make a note of this and explain why the alert does not apply to the patient.)
- The metadata in your EHR means that if you delete any information, a copy of it probably still exists. If you recall something about a patient encounter, do not change the original entry. A better option is to add the information as a new entry and explain how it changes or elaborates on previous information.
- Metadata may also reveal when you review laboratory or consultant reports and how long you spend doing so. When you notify a patient about test results or consultant recommendations, be sure to indicate how the notification was made. If you made a phone call, describe the conversation and whether you gave the patient instructions for additional testing or treatment. If you have to leave a message for a patient to return your call, document this. When leaving messages for patients, assume that the message might be accessible to others. Do not leave any details — simply ask the patient to call you.
- The metadata may show whether you have copied information from the previous visit into the current visit note. There may be tags in the metadata that indicate when it was originally typed. Use copy/paste rarely and when you do use it, review the text and check with the patient to find out if anything has changed. Then add a note indicating that the patient’s status is the same as described previously.
- If certain fields are being auto-populated based on previously entered information, verify the information or ask the medical assistant to do so before you enter the exam room. Document this review.
In a court case, the plaintiff attorney can display EHR information on a large screen. Using actual screenshots of the EHR, they can walk the jury through every step of what you did or didn’t do (based on what the EHR and metadata reveal). They can use the testimony of computer forensics experts to explain what the metadata means. If the metadata contradicts your testimony about what occurred, your veracity will be questioned.
While you don’t want to become overly cautious in an attempt to outwit metadata, be aware of its existence, and do your best to ensure that it supports your practice of good quality care for your patients.
Chris Dimick. E-Discovery: Preparing for the Coming Rise in Electronic Discovery Requests. American Health Information Management Association. Accessed March 1, 2019. http://bok.ahima.org/doc?oid=70649
Relias Media. How E-discovery Is Changing ED Malpractice Defense. June 1, 2017. Accessed March 1, 2019.