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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  • Anonymous

    If the patient’s lawyer can get the orthopedist to admit on the stand that, contrary to what the templated note says, he did not look at the patient’s TMs when they came in for the 3rd recheck on a knee replacment, hasn’t he proven that the doc is a liar?

  • Peter Elias

    I agree with the underlying thrust of your post, but I have a problem with some of the details:

    “In the physician’s mind, mental templates and open diagnostic thought coexist in a non-competitive, complimentary fashion.”

    Actually, there is a very substantial body of evidence that this is not true, for either physicians or the general public.

     “A good clinician automatically uses the right thought process at the right time.”Without the word ‘automatically’ this is true.  But it is hardly automatic and certainly not inevitable.

    The eHR and templates can certainly make automaticity and the use of heuristics easier and more likely, but these are innate characteristics of human behavior.

  • Ed Rodgers

    The EMR/EHR systems that I am familiar with lack true clinical decision support (CDS) that would address this very problem.  A template or a predetermined library of care plans rely on physician attention to detail to edit the template or care plan when the patient does not fit the one-size-fits-all assumption.

    Most EMR/EHR vendors steer clear of “clinical content” as would be needed to fuel the decision algorithms / rules needed to navigate the physician through appropriate considerations for a specific presentation of disease. This leads to “homegrown” templates that vary from institution to institution.  This ultimately leads to inaccurate documentation and variability in clinical care. 

    There are a few healthcare vendors that are supplying third party solutions to these problems, under the names of CDS, clinical pathways applications, and development efforts by major players such as GE Performance Solutions and Philips to integrate these aspects of detail into their product offerings but also this deficiency has been noted by startup biotechnology companies seeking to provide third party CDS offerings.


  • Anonymous

    As a healthcare risk manager who specializes in EMR issues, I am in general agreement with this.  The use of ‘canned’ templates that can lead you down the wrong path in diagnostic critical thinking is a real issue.  Properly-written templates and clinical decision support can be a real aid, but I am not yet seeing a lot of those out there in the EMR vendor world.

  • ninguem

    I’m so sick and tired of the blather about how electronic medical records will somehow save medicine’s cost, quality. It’s a big lie. Whatever problems it solves, it creates new ones.

  • ninguem

    How about that. Looks like the UK found their great heralded EHR was a flop.
    Today’s Wall Street Journal  -  Friday September 23, 2011

    U.K. Ends Health-Service IT Upgrade


    The U.K. said it was scrapping a £11 billion ($17 billion) information-technology program for its state-run health service, saying that some of the £6.4 billion already spent has been wasted and that the program today “is not fit to provide the modern IT services” the health-care system needs.

    Launched in 2002 under the previous Labour government, the program was hailed as one of the biggest IT projects ever attempted. It aimed to digitize patient records and link all parts of the sprawling National Health Service, or NHS, and was closely watched by other countries attempting to adopt new healthcare IT. BT Group PLC and Computer Sciences Corp. are among the suppliers involved.

    The scrapping of the ambitious U.K. program could have implications for the digital health-care push under way in other countries, including the U.S., which has suffered its own setbacks as it attempts to digitize medical records. Supporters of modern health-care IT say it can cut costs and improve patient care, but the software is often expensive, complex to design and cumbersome for physicians to use.

    In a statement Thursday, Britain’s Department of Health said it was “dismantling” the project because it “has not and cannot deliver to its original intent.” It said future IT decisions would be made on a regional level, with more suppliers competing for contracts.

    The health department said it based its decision in part on a recent report from a parliamentary committee that scrutinizes government spending, which concluded that the government had overpaid for parts of the IT system and faced “extensive delays” from suppliers.

    The report particularly criticized implementation of a software program that was supposed to help doctors and nurses seamlessly follow patients as they moved through the hospital, keeping track of tests and the
    wards they had visited.

    There have been “major delays” in Computer Sciences’ development and delivery of the product, the report said.

    In an emailed statement, Computer Sciences said it is “continuing to work closely with NHS as the program moves to a more modular approach.” It declined to comment on the report’s contention that software had been delayed.

    The parliamentary report said the health department had overpaid BT for some IT, paying an average of £9 million for a system that some U.K. hospitals were able to buy for £1 million to £2 million outside of the IT program. A BT spokesman said the report wasn’t making an “apples-to-apples” comparison of the products provided. In a statement, BT said its systems “are now underpinning vital services which the NHS relies on.” and that it “remains committed to its work with the NHS.”

    The health department defended part of the investment made so far, saying that “around two-thirds” of the £6.4 billion spent has resulted in “substantial achievements.” A department spokeswoman said successes include an IT system enabling broad access to digital X-rays and another allowing doctors and emergency rooms to access summaries of patients’ current medication and allergies.

    In the U.S., the government has tried to incentivize managed-care organizations to adopt better health-care IT as a means to improve patient care and reduce health-care spending, which the government helps fund through its Medicare and Medicaid programs. But progress has been mixed, said Kenneth Kizer, head of the Institute for Population Health Improvement at the University of California, Davis.

    Managed-care groups sometimes design IT systems without enough input from doctors and nurses, who then rebel when the product is forced upon them, he said.

    Managed-care giant Kaiser Permanente took a $442 million write-off in 2002 after scrapping a multibillion dollar attempt to create its own electronic medical-record system and has spent billions more on a new one. A Kaiser spokesman said the first system “was out of date and could not provide a common platform organization-wide that could operate at such great scale.”

    Write to Jeanne Whalen at

  • Michael Koriwchak

    Thanks everyone for your thoughtful comments.  Since writing that post a few months ago I have had some further thoughts.

    The real problems with templates is that in a typical EMR workflow the template is chosen by the nurse or medical assistant before the physician sees the patient.  Say a patient comes to the office with an occult tonsillar cancer manifest as referred pain to the ear.  The assistant selects an ear template based on the chief complaint of ear pain and “locks out” documentation that would lead to the correct diagnosis.

    One possible solution is to use “mini-templates” that insert into a general template.  This would automate documentation somewhat and ensure (for this example) a complete ear history is taken without excluding the general template that allows documentation of findings that would lead the the diagnosis of a tonsillar mass.

  • Anonymous

    “A physician narrative is a few sentences of prose composed totally by the physician with no IT automation involved.”

    Hence the custom, “Memo Box.”

  • Gibran Ramos

    Using the assessment to flush out and explain clinical thought process is where I work around canned templates. Instead of having just one word assessments, I expand them to whole logical explanations of not only what the patient is presenting with, but how that conclusion was arrived at given the hx and PE findings. If it is a logical process of getting from the impression to the dx, then I know I have covered the possible differentials well and am confident that I am not missing something. 

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