What Legal Risks Do EMRs Create and How to Address Them

by | Published on Jan 24, 2018 | EHR/EMR

Electronic medical record systems are considered beneficial in many ways. They help reduce documentation hassles typical of paper records, simplify processes such as medical records review, and improve patient data integrity and care. However, they carry certain legal risks. Therefore, it is important for clinicians to address inherent problems associated with electronic medical records and make them eligible for e-discovery.

How are EMRs risky?

Many applications that healthcare facilities use to create and store electronic medical records are deficient. Apart from being unable to handle the challenges of e-discovery, they may also lack the controls and capabilities to reduce risk. When providers use such poorly designed applications that cannot properly track the data entered into the system, they end up exposing themselves to legal risks.

Here are some major risks associated with EMRs and how providers can avoid those successfully.

  • Unreliable or incomplete data: Providers may be too busy with patient care that they often overlook appropriate documentation. They may fail to enter patient data in a timely manner, or the data entered may be incomplete. A good EMR should be able to manage the consistent entry of data irrespective of the clinician who is making the entry. It would be good to implement and enforce standards of documentation for end-user data entry, because it will help avoid improper corrections to patient records as well as erroneous data entry. Software mediated workflows that require clinicians to document completely and correctly could be an effective tool.
  • Hybrid records: Many healthcare facilities maintain hybrid patient records – some records may still be in paper format, some may be in the EMR, and some other data may be in external systems. The challenge is greater in this regard when it comes to ensuring complete and consistent patient data. If risk is to be minimized, the patient record must contain all relevant patient information. The EMR should be such that all staff members can use it appropriately, and enter all clinical data including scanning documents from other providers if required.
  • Failure to document in a timely manner: Documenting after an event can make medical records unreliable. Any adverse event must be recorded in a timely manner, and any non-compliance on the part of the patient must also be duly recorded. In addition, the recommended course of action and the instructions given to the patient must also be recorded. If these are not noted down, it could be assumed that proper treatment was not provided to the patient. An EMR system that can capture different metadata or data such as who created a record, who accessed a record and when, and what actions users took with regard to each patient record, should be chosen. This will help establish the reliability of the facility’s EMR system and patient records. Ensure that the EMR system has a reliable audit trail feature that details the date and time of any changes made to the medical record, including the users who made the changes. Audit trails help providers track the performance of their practitioners and staff, and hold them responsible for late entries and other errors. This in turn will help improve documentation compliance.
  • Failure to preserve records: Providers may find it challenging to maintain the integrity of the original patient record, because these records are continuously evolving. Recreating a record as it existed at a particular time may also be difficult. When EMR vendors upgrade their systems in keeping with emerging requirements, replicating information that would have been available in the past would become very difficult. Now, this is a major concern with regard to medical litigation that can extend over a number of years. When providers cannot retain old versions of their EMRs, they could face serious legal consequences. An effective way to handle this challenge is by issuing a litigation hold or a document that informs all document custodians regarding the nature of the case and why it is important to retain all information, as soon as litigation is anticipated. Reminders can be issued to all affected staff members regarding the hold. All concerned personnel must be given the required training on appropriate procedures well ahead of time. It is best to strengthen this training throughout the tenure of the hold.
  • Difficulty in exporting patient records for e-discovery purposes: Patient records may be produced in electronic or hard copy forms from the system. The formatting of these records becomes challenging when it comes to production in either form. While hard copy printouts of patient records are admissible in court, one-dimensional static EMR screenshots may be different in appearance from what providers see on the computer screen and this may make them unusable. Manual printing of this data screen-by-screen could be costly and time-consuming, and it would be difficult also to sort and categorize the data.If providers try to export patient records in native format to a flash drive or some other portable storage media, the person receiving it may not have the software needed to review that data, which is again an issue. The best way to solve this problem is to negotiate the format for data production with the surveyor or opposing counsel. It is also vital to minimize the scope and volume of the production. A facility with a good EMR should know what data is potentially responsive and should be able to suggest a logical discovery plan.

EMRs could enhance medical record retrieval and other processes required in medical litigation. They enable providers to increase efficiency and improve the standard of patient care. But they need to be reliable and flawless, be able to capture all relevant data that is generated internally as well as externally, and ensure complete, accurate, and timely record keeping. When implementing electronic medical records, providers must keep e-discovery in mind. The EMR vendor must meet EMR certification requirements for interoperability, and offer data in a format that can be exported such as through a CCD (Continuity of Care Document) or a C-CDA (Consolidated-Clinical Document Architecture) output as defined by the ONC (Office of the National Coordinator for Health Information Technology 2015 certification. These formats can be viewed in diverse EMR systems.

With a strong EMR system and best practices, providers can avoid potential risks electronic medical records pose with regard to e-discovery.

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