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Electronic Health Records Continue to Lead to Medical Malpractice Suits

Darrell Ranum, JD, Vice President of Patient Safety and Risk Management

A patient was treated with trigger point injections of opioids for pain management. The physician intended to order morphine sulphate 15 mg to be administered every eight hours. The electronic health record (EHR) drop-down menu offered 15 mg and 200 mg. The physician mistakenly selected 200 mg. The patient filled the prescription and took one dose with Xanax. The patient developed slurred speech and was taken to the emergency department (ED), resulting in overnight hospitalization and a malpractice claim against the physician for emotional trauma and the costs of the ED and hospital stay.

This type of EHR-related medical malpractice suit is becoming more common. For 8 years, claims in which the use of EHRs contributed to patient injury have been on the rise.

The Doctors Company’s analysis of claims in which EHRs contributed to injury show a total of 216 claims closed from 2010-2018. The pace of these claims grew, from a low of 7 cases in 2010 to an average of 22.5 cases per year in 2017 and 2018.  EHRs are typically contributing factors rather than the primary cause of claims, and the frequency of claims with an EHR factor continues to be low (1.1 percent of all claims closed since 2010). Still, as EHRs approach near-universal adoption, they may become a more prevalent source of risk.

Where Do EHR-Related Risks Come From?

The EHR-related claims closed from 2010-2018 were caused by either system technology and design issues or by user-related issues.

Case examples: System technology and design issues

Case 1: Electronic Systems/Technology Failure

Presentation: An elderly female patient presented to an otolaryngologist for sinus complaints. The physician intended to order Flonase nasal spray. The patient took the medication as directed. Two weeks later, the patient went to the ED for dizziness.

Outcome: The ED physician discovered the patient was taking Flomax — a medication for enlarged prostate, one side effect of which is hypotension. The original ordering physician had entered “FLO” in the medication order screen, and the HER automatically selected Flomax. Not noticing the error, the physician selected it. There was no HER drug alert for gender.

Case 2: Fragmented Record

Presentation: A 55-year-old male patient presented to the ED with back pain. He was diagnosed with severe lumbar stenosis. Following surgery, nurses noted neurological changes. They documented the changes and called the physician, but no action was taken.

Outcome: Due to a fragmented record (both paper and HER), information was not communicated to the correct physician. The delay in contacting the correct physician resulted in a delay of return to surgery and partial paralysis.

Case examples: User-related issues

Case 1: Copy & Paste

Presentation: A physical medicine physician followed a patient with extreme weakness due to cervical vascular malformation. Nurses and a physical therapist noted neurological changes, but the physician’s note indicated no changes. The physical therapist contacted the attending physician to discuss neurological changes including increased weakness. The physical therapist asked the physician to order a neurological consult due to the patient's deteriorating condition.

Outcome: The physician ordered the consult but did not explain why his documentation did not address the patient's changing condition. The patient was taken to surgery and now has incomplete quadriplegia. The physician was criticized for copying and pasting the same note for four days and delaying the intervention.

Case 2: Copy & Paste

Presentation: A 38-year-old obese patient presented for medical clearance. His test results were normal. Three months later, the patient presented with shortness of breath and dizziness. His blood pressure was 112/90 and pulse was 106. No tests were ordered.

Outcome: Five days later, the patient expired from pulmonary embolism. Experts questioned whether the physician had conducted a complete assessment. The progress note was identical to the previous note from three months earlier, including old vital signs and spelling errors.

Which Specialties are Most at Risk?

In an effort to identify and communicate system failures that result in patient harm, The Doctors Company identified the specialties who receive the highest percentage of claims where EHRs are a factor:

What are the Injuries and Allegations?

Of those injuries that occurred in 7 percent or more of claims, adverse reaction to a medication and death were by far the most prevalent in EHR - related claims.

Patient Injuries

  • Death 25%
  • Adverse reaction to medication 23%
  • Need for surgery 15%
  • Emotional trauma 14%
  • Undiagnosed malignancy 13%
  • Organ damage 11%
  • Infection 9%
  • Ongoing pain 7%
  • Mobility disfunction 6%

In terms of the top allegations, diagnosis-related allegations represented nearly one-third of the total:

  • Diagnosis related 31%
  • Improper medication management 11%
  • Improper management of surgical patient 8%
  • Improper management of treatment plan 7%
  • Improper performance of surgery 7%
  • Medication ordering / Wrong medication 5%
  • Medication ordering / Wrong dose 5%
  • Improper performance of treatment or procedure 5%

Top 5 Tips to Avoid EHR-related Claims

As a foundation, practices should have processes in place to monitor EHR issues and prioritize the need for EHR redesign based on risk. Identifying common EHR - related pitfalls and establishing risk mitigation strategies to minimize the chance of patient harm are important results of closed claims studies. Here are the top five risks and suggestions to avoid an EHR - related malpractice claim:

  • 1.     Risk: Copy/paste may perpetuate incorrect or outdated information.

Solution: Avoid copying and pasting except when describing the patient’s past medical history.

  • 2.     Risk: Many EHRs auto-populate fields in the patient’s history and physical exam and in procedure notes, causing the entering of erroneous or outdated clinical information

Solution: Contact your organization’s IT department or your vendor if you notice that the auto population feature causes erroneous data to be recorded. If the auto populated information is incorrect, note it and document the correct information.

  • 3.     Risk: Templates with drop-down menus facilitate data entry, but an entry error may be perpetuated elsewhere in the EHR.

Solution: Review your entry after you make a choice from a drop-down menu.

  • 4.     Risk: Doctors are responsible for the information to which they have reasonable access. EHR metadata documents what was reviewed. A patient injury may result from a failure to access or make use of available patient information.

Solution: Review all available data and information prior to treating a patient.

  • 5.     Risk: The computer may become a barrier between the doctor and the patient.

Solution: Relocate the computer so the physician’s back is not to the patient and so the patient can view the screen.  Remind the patient that you are listening carefully, even though you may be typing during the appointment and summarize or read the note to demonstrate you have listened.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Reprinted with permission. ©2019 The Doctors Company (thedoctors.com).

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