5 Ways to Avert a Malpractice Lawsuit With Better EHR Techniques

Rachel Reiff Ellis

September 01, 2023

Although most physicians have gotten used to working with EHRs — despite their irritations — the use of EHRs has contributed to a growing number of malpractice lawsuits. Defense attorneys say that doctors need to be increasingly careful of their EHR interactions in order to protect their patients — and themselves against legal action.

According to a study in the Journal of Patient Safety, more than 30% of all EHR-related malpractice cases are associated with medication errors; 28% with diagnosis; and 31% with a complication of treatment, such as entering wrong information, entering information in the wrong place, and overlooking EHR flags and warnings for interactions or contraindications.

The study gave these examples of EHR-related errors that led to patient harm and ultimately to malpractice lawsuits:

  • A discharge order omitted a patient's medication that prevented strokes; the patient had a stroke days later.

  • An electronic order for morphine failed to state the upper dose limit; the patient died.

  • A physician meant to click on "discontinue" for an anticoagulant but mistakenly clicked on "continue" for home use.

Catching potential issues such as drug interactions or critical medical history that should inform treatment is more important than ever. "We know from safety engineering principles that just relying on vigilance is not a long-term safety strategy," says Aaron Zach Hettinger, MD, chief research information officer at MedStar Health Research Institute in Washington, DC. "So, it's critical that we design these safe systems and leverage the data that's in them."

Here are five smart EHR practices to help protect your patients' health and your own liability.

1. Double-check dropdown boxes

When it comes to user error, it's easy to click the wrong choice from a drop-down menu. Better to take the time to explain your answer in a box, even if it takes a few more minutes. Or if you are choosing from a menu, proofread any information it auto-fills in the chart.

Hettinger says you can strike a balance between these templated approaches to diagnosis and long-term care by working with third-party systems and your organization or vendor IT department to help with follow-up questions to keep populated data in check.

"Make sure you have a back-end system that can help monitor that structured data," says Hettinger. Structured data are the patient's demographic information like name, address, age, height, weight, vital signs, and data elements like diagnosis, medications, and lab results. "Wherever you can leverage the underlying tools that are part of the electronic health record to make sure that we're constantly checking the right results, that helps reduce the workload so that clinicians can focus on taking care of the patients and doing the right thing, and not be as focused on entering data into the system."

2. Supplement EHR notes with direct communication

The failure to diagnose cancer because one physician doesn't know what another physician saw in an imaging report is one of the most common claims in the cases he tries, says Aaron Boeder, a plaintiff's medical negligence lawyer in Chicago.

Physicians often assume that if they put a note in the electronic chart, others will look for it, but Boeder says it's far more prudent to communicate directly.

"Let's say a radiologist interprets a scan and sees what might be cancer," he says. "If the ordering doctor is an orthopedist who's ordered a CT scan for DVT, there's going to be a report for that scan. It's going to get auto-populated back into that physician's note," says Boeder.

The physician may or may not look at it, but it will be in their note, and they're supposed to follow up on it because they ordered the scan. "But they may not follow up on it, and they may not get a call from the radiologist," he says.

"Next thing you know, 2 or 3 years later, that patient is diagnosed with very advanced cancer."

3. Tailor auto-fill information to your common practices

Suppose, as a physician, you find that you need to change a default setting time and time again. Hettinger says it's worth your time to take an extra couple of minutes to work with your vendor or your health system to try and make changes to auto-population settings that align with your practices.

"Let's say a default dose of 20 milligrams of a medication is what automatically pops up, but in reality, your practice is to use a smaller dose because it's safer, even though they're all within the acceptable realm of what you would order," he says. "Rather than have the default to the higher dose, see if you can change the default to a lower dose. And that way, you don't have to catch yourself every time."

If your auto-fills are amounts that constantly need changing, an interruption could easily knock you off course before you make that correction.

"If there are ways to have the system defaults be safer or more in line with your clinical practice, and especially across a group, then you're designing a safer system and not relying on vigilance or memory prone to interruptions," says Hettinger.

4. Curb the copy and paste

It's tempting to copy a note from a previous patient visit and make only minimal changes as needed, but you risk including outdated information if you do. Even if you're repeating questions asked by the intake nurse, it is safer to not to rely on that information, says Beth Kanik, a defense medical malpractice attorney in Atlanta, Georgia.

"If it later goes into litigation, the argument then becomes that it looks like you didn't do your job," says Kanik. "Instead, try to ask questions in a way that would elicit responses that may be a little different than what the nurse got, so that it's clear you asked the questions and didn't just simply rely upon someone else's information."

5. Separate typing from listening

While EHR may be an excellent tool for data collection and safety checking, it's not a stand-in for doctor–patient interaction. As technology practices push medicine toward more and more efficiency, Boeder says it's most often listening over all else that makes the difference in the quality of care. And good listening requires full attention.

"A real concern for physicians is the number of visits they're expected to accomplish in a set amount of time," says Boeder. "Often this translates into a doctor talking to a patient while typing notes, or while reading a note from the last time the patient was in."

Taking the time to pause after entering data and briefly reviewing your understanding of what your patient has told you can be invaluable and may save you — and your patient — problems later.

"In so many cases, it comes down to people not being heard," says Boeder. "So listen to what your patients are saying."

Rachel Reiff Ellis is an Atlanta-based freelance writer and editor specializing in health and medicine. She is a regular writer for WebMD and Fortune Well, with additional work appearing in Prevention, Oprah Magazine, Women's Health, and others.

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