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Legal Implications of Electronic Medical Records (EMR) Documentation for Nurses: “Charting” a Better Course

On Behalf of | Sep 14, 2015 | Firm News, Health Care, Litigation and Trial Practice, Risk Management

As a medical malpractice defense attorney, I can attest to the important role that medical records play in defending medical negligence lawsuits, especially charting that is done by nurses.  Considering that a patient has two years in which to file a medical malpractice lawsuit after the alleged wrongdoing, charting becomes extremely important to defending those lawsuits.  Medical records are all that remains after a nurse’s memory of a patient fades away.  All medical malpractice cases rely heavily upon a close examination of the patient’s medical records, by both the plaintiff’s attorney and the defense attorney, to see if they shed any light on the patient’s hospital experience, care and treatment.

Below are a few ways that nurses can improve their charting practices in the EMR, for both the benefit of themselves and in order to provide more efficient patient care experiences.

  1. When using an electronic charting method, use both the drop down menus and additional narrative note features to your advantage:

The medical community is increasingly converting to an all electronic charting system.  Within the next few years, I anticipate that we will see very little human handwriting in hospital charts.  Unfortunately, there are pitfalls to using an all-electronic method of charting.  For better or for worse, EMRs usually have preset drop-down menus, templates, guides, and predetermined selections or values from which a nurse is forced to pick from when she perform her assessment.  Sometimes these pre-determined selections just don’t fit the exact type of entry that the nurse wants to make about a patient.  It is like trying to fit a square peg into a round hole – the nurse may want to say something different but is encouraged to chart using the pre-set menus and templates.  What’s to be done in situations like this?

A good tip for nurses is to ask whether your charting system has a narrative section where you can free-write or free-text.  This allows the nurse to not only complete the predetermined template, but to also add a few personal observations about the patient and your care, without being constrained by the pre-set boxes and values.  It doesn’t have to be an extensive note, but sometimes a short little blurb, written in the nurse’s own voice, says a lot more about the interaction with the patient than a grouping of check-marks and numbers.

  1. EMRs are time consuming to complete and nurses must consciously find time to step away from the computer or iPad and interact with the patient again:

EMRs are increasingly making patient interactions impersonal because the nurse is forced to spend more time on the computer completing her mandated electronic charting than interacting with the patient face to face.  When possible, make connections with patients by stepping away from the tablet or desktop computer, listen to their issues, provide patient care, and then chart electronically after the fact.  This certainly requires more effort on the caregiver’s part, and requires the nurse to manage her time better, but it significantly impacts patient care for the better.  Patients increasingly feel as though medical care is becoming impersonal and EMRs do nothing to dispel this perception.  When the patient experience feels impersonal or cold, that patient is more likely to be unhappy with their doctor, disgruntled about the “poor” care they received, and they may possibly sue for any perceived wrongs.  Restoring medical care to a more personalized and engaging experience helps to ease patient frustration in an increasingly technological and detached society.

  1. The computer on which you chart has the ability to track all your actions and notes within the EMR via an “Audit Trail,” and these audit trails become very important in medical negligence litigation, so knowing that they exist can help you to chart more effectively and in a safer manner:

The best way to describe an Audit Trail is that it contains all the hidden, background information of an electronic medical record.   An Audit Trail tells you the following:  Who wrote a specific note in the chart, when they wrote the note in real time, when they “timed” the note, whether the note was revised at any point in time, when it was revised and by whom, what information was deleted and added to the note and when, and from what computer terminal the note was written.

Audit trails are heavily scrutinized by plaintiff’s counsel in medical malpractice cases.  Audit trails give so much information that the content of the audit trail can be spun to tell any “story” the opposing side wants.  For example, nurses who make late entries in the chart are accused of charting “after the fact” and not contemporaneous with patient care, therefore leading to the implication that the note is inaccurate.  Nurses who revise notes or delete information later are accused of attempting to “make their care sound better than it was,” or to make the entry sound better than it did originally.  Nurses who change notes days later are accused of “doctoring the records” after the fact.  Many of these assertions are not true, but the audit trails provide great fodder for plaintiff’s attorneys who are looking to criticize a caregiver for any minor issue or slight.

Unfortunately, there is no simple advice to give when it comes to electronic charting and the fact that the Audit Trail always lurks in the background and, frankly, records everything that the nurse is doing.  What is found in the audit trail will shape how a lawsuit develops and what themes become important during that lawsuit.  When nurses are made aware of the existence of the audit trail, they then become more conscientious about charting contemporaneous to patient care and only returning to the records to change things when necessary — for example, to fix a clear error, to add important information to a note that was originally not included, or to make any addition or deletion that is in the best interest of the patient’s health and continuity of care.  So long as the nurse is charting, or revising, or deleting, or rewriting notes with the patient’s best interest and care in mind, then the lawsuit – and the audit trail – become significantly easier to defend at trial.

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The above list is certainly not all-inclusive, but merely seeks to highlight a few issues which may arise when medical professionals and hospitals make the conversion to electronic records.  EMRs require a significant amount of training to use them effectively.  Nurses must learn to embrace the changing technology – it is here to stay after all – but also mold it to their benefit.

For a confidential analysis of your EMR issues, or questions about TRC’s healthcare practice area, please contact David R. Johnson, Esquire at (412) 316-8662 or [email protected], or Ashley L. Griffin, Esquire at (412) 316-8652 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.