Before the days of electronic health records, the review of medical records in medical malpractice cases was only limited by the handwriting of the doctors. But, once that was revealed, standard of care deficiencies were relatively easy to spot and the notes were often written on a single page:
- Was the diagnosis accurate?
- Were the treatments prescribed appropriate?
- Was a reasonable history and physical obtained?
- Were relevant lab, EKG, or imaging studies ordered?
- Was a reasonable differential diagnosis considered?
- Did those deficiencies contribute to the poor outcome that occurred?
Doctors could be asked to testify about their deficiencies, and whether their practice was to document all pertinent positives and negatives. Their responses, although sometimes creative, often exposed the medical mistakes that occurred.
By January 1, 2014, Federal law mandated that doctors utilize electronic records; as well as demonstrate ‘meaningful use,’ a catchword that represented and met specific defined criteria. The purpose of the law was to improve quality, reduce errors, and possibly save money in the health care industry. While none of those goals has ever been achieved in any reliable study, it has transformed the practice of medicine. Currently over 83% of physicians utilized EHRs in their office.
As a result of the emergence of electronic medical records, notes appear voluminous in medical malpractice cases, sometimes 4-10 pages per note. Each note appears to have a complete history, review of systems, and thorough physical exam. In fact, due to the copy/paste methods of writing those notes, each note can appear almost identical to other notes, except for different dates. Such notes have been referred to by doctors as ‘garbage notes’; because they indicate little about what was considered by the doctor during the visit.
Besides the fact that it often takes longer to review a patient’s chart, standard of care deficiencies now aren’t necessarily what was omitted in documentation. Rather what was documented but isn’t true.
It’s necessary to discover internal inconsistencies, such as a new diagnosis without a physical exam description to support that. I recently reviewed a case of ‘missed melanoma,’ a deadly skin cancer. Although the family and specialists reported an alleged chronology for the onset of the lesion; the primary care doctor’s physical exam defaulted to ‘no suspicious skin lesions or skin tumors’. However, his impression added a diagnosis of ‘tinea pedis,’ or athlete’s foot, and a prescription of an anti-fungal cream was prescribed.
Since a reasonable description of typical athlete’s foot was not provided, it appeared that the doctor was perhaps treating the new dark mole, which turned out to be melanoma, with the cream, instead of providing an immediate referral to a dermatologist. Furthermore, since no follow up visit was arranged, the lesion progressed. When the patient returned nearly one year later with a much larger, ulcerated skin lesion, the opportunity for cure was lost and the patient eventually died from metastatic melanoma.
Electronic health records, unlike older paper charts, are typically time-stamped for clinical activity and input of orders. These are often discoverable and may add to doctor liabilities. Many doctors have complained that entering information with EHRs takes much longer than for paper charts. To speed up the process, it is not uncommon for some doctors to input their information during the actual office visits. This creates two problems. First, it can lead to sloppy, poorly organized notes. Second, it can promote turning patients into litigants via decreased eye contact during the office visit; which may be interpreted as less caring.
Another problem comes from the technology of EHRs. This allows for clinical decision supports, pop-up alerts, clinical prediction rules, and reminders for follow up visits. Although these have been intended to improve care delivery, they aren’t always relevant, or based on pertinent scientific evidence. And yet, any deviation from these ‘standards’ can easily become fodder for attorneys in medical malpractice actions.
Whether the age of electronic health records will result in a greater number of medical malpractice claims has yet to be determined. But, as patient portals become more standard, where patients will have easier access to their own medical records; the potential for new conflicts could become a greater source of contention in the future.
