Legal weaknesses of an electronic medical record

Over the past several months I have read several online discussions and comment threads on the medical-legal issues raised by EMR, including an HIMSS brochure on the subject.  Most of these discussions miss what I consider to be the most important legal weaknesses of an electronic medical record. I finally came across an online discussion that comes closer to covering what I consider to be the most important medical-legal issues.

When we were setting up our EMR about 6 years ago many of our docs came to me with the same request:  “I want to create a chart note with a single button click.”  Although that was obviously a bad idea, their desire for it was understandable, given our inexperience at that time.  Templates are widely recognized as an effective method of documenting care and complying with CPT coding requirements.

For many common diagnoses physicians have been using “mental templates” long before EMR existed.  For example, a pediatrician refers an otherwise healthy 4 year old child to an ENT doctor for recurrent middle ear infections.  Because pediatricians are capable of utilizing all conservative treatment options for middle ear infections, the pediatrician will usually not refer the child until he needs ear tubes.  This is one of our most common operations.  The ENT doctor’s mental template is thus geared towards documenting indications for ear tubes.  The template includes quality and duration of ear symptoms, number of doctor visits for ear infections, and the antibiotics that have been tried so far.  Also included would be the appearance of the eardrums and the results of testing performed in the office.

So why not create a “one button click” template?  When this child comes to your office bring up the template, fill in the blanks and you are done.  Come to think of it, let’s save some money and have a nurse, nurse practitioner or a physician assistant do the entire visit.  Sounds like an ObamaCare Dream Come True.

There’s just one small problem.  Hidden among the dozens of children with straightforward ear infections are a few kids who look like they have chronic ear infections, but actually have something else going on.  It might be something benign like allergies or enlarged tonsils and adenoids, or it might be something rare and ominous like eosinophilic granuloma or malignancy.  It is the physician’s job to recognize these patients in the crowd of children with symptoms consistent with chronic ear infections.  To find these patients the physician uses an open diagnostic thought process.  In the physician’s mind, mental templates and open diagnostic thought coexist in a non-competitive, complimentary fashion.   A good clinician automatically uses the right thought process at the right time.

The same cannot be said of EMR.  EMR templates must be carefully designed to support the open diagnostic thought process that is essential to practice medicine well. EMR templates will subtly influence the physician’s thought process as they are used over and over.  Depending on the EMR template structure that influence can be positive or negative.  Templates that over-automate the note creation process emphasize template thinking at the expense of open diagnostic thought.  This increases the risk of a missed diagnosis and incurs medical legal exposure.  Such templates augment the already unfavorable influence of CPT coding requirements, which also force clinicians to focus on documentation of care rather than the care itself.  Among the worst examples of such templates are those that prompt the user to check a bunch of boxes and then create a narrative based on the user’s menu choices.  The result is awkward text that reads nothing like prose composed by a real person.

From a legal standpoint it is easy to read through the facade of automated detail and completeness to see the clinician’s lack of true diagnostic thought.  In the event of a bad outcome the legal exposure is just as severe, perhaps worse, than a sparsely completed paper chart note.  To avoid this hazard, those who design and customize EMRs must seek an optimal level of automation – one that leverages the advantages of EMR but still supports and documents the physician’s direct participation in care.  A properly designed template requires at least one “physician narrative”.  A physician narrative is a few sentences of prose composed totally by the physician with no IT automation involved.  In legal matters this narrative my be the only clear proof that the physician actually touched the patient him/her- self and gave that patient some thought.

Mike Koriwchak is an otolaryngologist who blogs at the Wired EMR Practice.

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