Practice Areas

Client Alert: An Overview of Emerging Issues with the Use of the Electronic Medical Record

December 2014
Renee H. Martin, JD, RN, MSN

By: Renee H. Martin, JD, RN, MSN

ABA Health Law and Policy Liaison, Nursing and Allied Healthcare Professionals Task Force, AVA Health Law Section

All allied health professionals have heard the age old maxim, "if it wasn’t documented, it wasn’t done." There is an emerging new twist to this old adage: "if it isn’t found in the EMR, dig deeper, as it may be hidden in there." 

There is little doubt that the emergence and adoption of the electronic medical record ("EMR") has increased dramatically in all clinical settings (largely due to Medicare’s demand that providers adopt them) over these last several years. At first, the EMR was touted as the panacea capable of eliminating multiple patient safety and quality issues that were either caused by or incapable of being addressed by the paper record. It seems, however, that as with other emerging technologies, things are never quite as good as they seem. Discussed herein are some of the emerging issues with the use of EMRs:

First, providers are at risk during the transition from a paper record to the full implementation of an EMR. Practitioners undergoing EMR implementation are under increased risk of malpractice during the implementation phase. There is frequently a time of "disconnect" that occurs during the implementation wherein information gets lost, "bugs" are worked through, and unexpected transition issues occur. This is partly because providers use several different software packages to perform a variety of services and moving that data from disparate and frequently non-interoperable systems proves difficult. There are numerous examples of providers who have lost their ability to enter physician orders electronically, timely complete discharge summaries, or find entries which simply "disappear." This is especially true for clients who are mental health treatment and substance abuse providers. Many EMR vendors have created software packages for EMR systems which may work well in a hospital setting or traditional physicians’ offices, but lack the essential elements to permit timely documentation in these alternative provider settings.

Second, there is tremendous learning curve with any EMR implementation. Sometimes, basic human behavior, rather than egregious medical error, is enough to trigger a malpractice claim. EMRs give providers multiple choices with clinical decision support, pop-up alerts, clinical prediction rules, and reminders for follow-up; in other words, the EMR can provide a large variety of resources to improve care delivery. Which resource should the provider utilize? Providers may find themselves being questioned regarding the use or non-use of these clinical resource decision making tools. In the end, as we all know, the decision ultimately rests with the provider to explain and defend.

Third, the jury is still out as to whether EMRs actually provide safer health care delivery. It is true that the EMR eliminates issues of illegible handwriting, overuse of unapproved abbreviations and the like. However, there is increasing evidence that providers are too readily copying and pasting information previously entered by colleagues. Not only does this implicate the fraud and abuse laws, but this increases exponentially the chance that erroneous information and data are "parroted" through the record with the misinformation going unnoticed and uncorrected.

Fourth, the EMR leaves needed data missing. We all know that when a malpractice claim is filed against a provider, the first thing to be produced in the course of litigation is the medical record. With an EMR, several issues may be problematic. First, data is often missing, or stated more correctly, hidden somewhere in non-accessible field. The printing out of the EMR fields frequently fails to provide the narrative framework and description of the care provided – printing out of the "screen pages" renders the narrative to appear disjointed and produces tremendous paper volume for the plaintiff and defendant to decipher. In sum, the appearance and information flow may look so different to the reader that the ability to decipher whether the requisite care was provided or not provided may be lost.