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EMR AND MEDICAL LEGAL ISSUES Grandview Medical Center BRANT POLING PATRICK SMITH

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Introduction Education 1990 B.A.Capital University 1994 J.D. Capital University Awards 2015 Ohio Super Lawyers Education 1976 B.A. University of Notre Dame 1979 J.D.University of Cincinnati Awards 2015 Ohio Super Lawyers Brant Poling, Esq.Patrick Smith, Esq.

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Pre-Test Question # 1 What is the most common mistake practitioners make when preparing a patients EMRs that expose them to liability in a medical malpractice lawsuit? 1. Writing too much information about the patient, family history, diagnosis, etc. 2. Writing too little information about the patient, family history, diagnosis, etc. * 3. Forgetting to edit/review EMR entries 4. Writing too much irrelevant information about the patient

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Pretest Question #2 Which of the following EMR entries is the best description of a patients sleep problems? 1.Patient complains of not being able to fall asleep and stay asleep. 2.Patient has not been able to sleep in the past 24 hours. 3.Patient complains of not being able to fall asleep, has not slept in the past 24 hours, has trouble staying asleep, and describes feeling anxious and depressed. * 4.Patient has major sleep issues, likely due to anxiety and depression.

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Essential Elements of a Medical Malpractice Claim In order to succeed in a medical negligence claim, the Plaintiff must prove the three elements of the claim; I. Plaintiff must prove that the healthcare professional failed to meet professional standards II. The Plaintiff must demonstrate that he or she suffered actual injury III. The Plaintiff must prove that that injury was caused by the healthcare professionals failure to meet professional standards

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Burden of Proof Plaintiff bears the burden of proof Plaintiff must use expert witness testimony to meet that burden Defense will counter the testimony of the Plaintiffs expert witness(es) with their own expert witness(es)

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Standard of Care What is the standard of care? Its whatever care a physician of ordinary skill, practicing within the same specialty and community as the defendant, would be expected to give to a similarly situated patient. Who proves what the standard of care is? expert witnesses What about medical literature? Its not relevant unless an expert witness says it is.

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Causation Its not enough for the Plaintiff to prove a defendant breached the standard of care. The Plaintiff must also prove that that breach actually and proximately caused the alleged injury. Actual cause is what actually caused the injury (for example, the actual cause of a patients foot drop is injury to the sciatic nerve) Proximate cause is the legal cause (for example, the proximate cause of the patients foot drop was the physicians negligence)

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Damages What are damages? Economic medical bills, lost wages, funeral costs, etc. Non-Economic pain and suffering, loss of consortium, etc. Punitive Dont represent any actual injury or loss suffered by the Plaintiff. The only intended purpose of these awards is to punish a defendant for malice or extreme recklessness.

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If you dont record it.it didnt happen! Documentation through EMR

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Importance of Medical Records Medical Record: Best Friend v. Worst Enemy Plan Patients Care Communication for the Health Care Team Provides Continuity Financial Reimbursement Used to Assess the Quality of Patient Care Mandated to Maintain Accreditation Status

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Importance of Medical Records Creates a Credible Witness in the Courtroom

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Importance of Medical Records The Record Should Pain the Clinical Picture and Thought Process

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Importance of EMRs Electronic Medical Records may provide a more accurate record than written charts because it eliminates errors and confusion due to legibility

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Importance of EMRs

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Adverse Consequences to be Aware of When using EMRs New risks for malpractice Data loss or destruction Inappropriate corrections to the medical record Inaccurate data entry Unauthorized access/ cyber data breach Errors related to problems that arise during the transition to EMRs

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How to Prevent the Adverse Consequences EMR Essential Charting Tips: Use Objective Language Objective: Not able to return demonstrate self BGM, no blood sugar diary Subjective: Patient is noncompliant Objective: Plan recommended follow up in one month Subjective: Instructions given Example 1Example 2

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EMR Essential Charting Tips: Use Objective Language Objective: Patient ate half of hamburger and half of bun Subjective: Diet taken fairly Objective: Dr. Smith paged 3x, no response Subjective: Dr. Smith paged 3x, refused to see patient Example 3Example 4

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EMR Essential Charting Tips: Use Objective Language Actual Sentences Found in Patients Hospital Charts: (What NOT to do!) Patient has Two Teenage Children, but No Other Abnormalities. Discharge Status: Alive but Without My Permission. Occasional, Constant, Infrequent Headaches. She is numb from her toes down.

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EMR Essential Charting Tips: Provide a Thorough Record Young woman presents to clinic for gestational diabetes follow up. She has been doing well but blood sugar results are still bad. The patient will be following up. 3/22/07 3:50 p.m. 27 yr. old woman presents to the clinic for follow up of gestational diabetes. Husband is present. Patient states she is following BGM recommendations and eating carbohydrates within recommendations, but 20% or more of BG are greater than target. Primary Care Physician, Dr. Bond notified of elevated glucose concerns via fax including Education Record and BGM diary to 614-000-0000. Receipt confirmed by Maureen. Patient understands need to follow up with Dr. Bond this week. Poor Documentation Good Documentation

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How EMRs Are Relevant in a Medical Malpractice Lawsuit Example OBGYN Case Plaintiffs Allegations: Failure to timely identify and treat preeclampsia/eclampsia Failure to timely identify and treat fetal distress during the labor process Failure to utilize the chain of command to pursue physician intervention Failure to recognize arrest of labor Failure to effectuate a prompt cesarean section

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How EMRs Are Relevant in a Medical Malpractice Lawsuit: Example OBGYN Case Relevant Records in the Lawsuit: 1. Prenatal Records 2. L&D Records 3. Fetal Monitor Strips 4. Newborn Records DC Order 5. Transfer Records 6. Hospital Policies and Protocols 7. Midwife/OB Standard Care Arrangements 8. Re-cuts of Placenta and/or autopsy slides 9. All Radiologic studies 10. Subsequent health care records of the child 11. All other records for the child (school camps, etc) 12. Records of prior deliveries (stillbirths or viable births) 13. Records of prior pregnancies (miscarriages or D&C) 14. Records of post delivery pregnancies 15. ACOG, AWON, etc policy statements or guidelines 16. Your website

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How EMRs Are Relevant in a Medical Malpractice Lawsuit Example OBGYN Case Failure to Document the Following will Fuel the Lawsuit: 1. Date & Time of Admission 2. Date & Time of ROM 3. EDC By LMP or By US 4. Frequency of Vital Signs & Temp 5. Onset of Contractions & Active Labor 6. Maternal Sensation and Palpable Fetal Movements-Scalp STIM-Kick Counts 7. Names of Provider Rendering Care 8. Notification & Telephone Calls with Physicians 9. Complete & Onset of Pushing 10. Fetal Station 11. Time of Application of Vacuum; # of pulls 12. Providers in Attendance at delivery & Time NICU Team Called 13. Provider Assigning APGAR Scores 14. Response to Decelerations Fluids, positioning, O2, MD notification 15. Documentation on FMS v. clinical flowsheets

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Learn From Others Mistakes Some examples of cases we have litigated where the cause of action was either based on or fueled by a physicians mistakes made in preparing EMRs:

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QUESTIONS

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Poling Law 300 E. Broad Street Suite 350 Columbus, Ohio 43215 Phone: 614-737-2900 www.poling-law.com THANK YOU Brant Poling, Esq. bpoling@poling-law.com Patrick Smith, Esq. psmith@poling-law.com