Article

Electronic Medical Records: Friend or Foe?

By Kenneth Patterson

With the widespread, if not mandatory, use of electronic medical records, understanding how these systems work and how they can be used to the advantage of the health care provider is the subject matter of this memo. As the title suggests, medical records can be the greatest friend to the health care provider when it comes to documentation or contemporaneous recording of exemplary care, memorializing critical consents and instructions, and stating the reasonable plan of care based upon the circumstances which existed when the records were generated.

To best understand the practical comments which are contained herein, this paper will be broken down into two segments. The first segment will discuss the content requirements of medical records according to the Medical Practice Act in Texas. The second part will discuss the special status assigned to medical records when used in evidence to prosecute or defend any lawsuit involving medical care. A proper understanding of these two principles will hopefully encourage the physician or other health care provider to understand the importance of habitually producing and maintaining excellent medical records.

Practical Benefits to the Physician’s Medical Practice

The positive aspects of good recordkeeping also ensures full reimbursement for procedures ordered and avoids some of the red-tape which reduce or delay payment for health care services. Inappropriate use of electronic medical records can also result in significant fines, HIPAA violations, and needless actions from the Texas Medical Board or other regulatory agencies.

Practical Benefits of Avoiding Litigation

Good electronic medical recordkeeping can avoid as many as 80% of the lawsuits that may be threatened. They can also assure victory in those claims that get filed and avoid the battles of credibility which sometimes give rise to very serious claims. On the other hand, failing to use the electronic tools to document care, or using them in a sloppy, lazy or inappropriate way, can generate lawsuits that are difficult, if not impossible, to defend.

With these positive benefits in mind, one should re-read the true statement at the beginning of this paper which is of critical importance.


PART ONE: The Law Defining Medical


The Expected Contents of Medical Records

The Texas Medical Board regulates medical practice in Texas and imposes certain duties and requirements for those who have a license to practice. When a physician has a complaint which gives rise to an investigation, the Medical Board is NOT going to be forgiving as to the necessity of proper and complete medical records. The detailed content required of every physician is set out below:

Texas Medical Board’s Requirements as to Contents of Medical Records

Texas Administrative Code, TITLE 22, PART 9, CHAPTER 165, RULE §165.1 (a)

Each licensed physician of the board shall maintain an adequate medical record for each patient that is complete, contemporaneous and legible.

For purposes of this section, an “adequate medical record” should meet the following standards:

(1) The documentation of each patient encounter should include:

A. reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;

B. an assessment, clinical impression, or diagnosis;

C. plan for care(including discharge plan if appropriate); and

D. the date and legible identity of the observer.

(2) Past and present diagnoses should be accessible to the treating and/or consulting physician.

(3) The rationale for and results of diagnostic and other ancillary services should be included in the medical record.

(4) The patient’s progress, including response to treatment, change in diagnosis, and patient’s noncompliance should be documented.

(5) Relevant risk factors should be identified.

(6) The written plan for care should include when appropriate:

A. treatments and medications(prescriptions and samples)specifying amount, frequency, number of refills, and dosage;

B. any referrals and consultations;

C. patient/family education; and

D. specific instructions for follow up.

(7) any written consents for treatment or surgery requested from the patient/family by the physician.

(8) Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.

(9) Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.

(10) Salient records received from another physician or health care provider involved in the care or treatment of the patient shall be maintained as part of the patient’s medical records.

(11) The board acknowledges that the nature and amount of physician work and documentation varies by type of services, place of service and the patient’s status. Paragraphs (1) - (11) of this subsection maybe modified to account for these variable circumstances in providing medical care.

Needless to say, the content required by the Board is broad, detailed and comprehensive. Some of the necessary items (prior meds, billing codes, consult reports and consents) may automatically be included in an electronic medical record. However, the information described in items (1) through (7) require the physician’s direct input. The need for records to be created as a part of the care provided is paramount.

The internal clock running in the EMR systems are unforgiving if the practitioner delays in completing the record or leaves the entry open indefinitely. When records are scrutinized by a reviewer, the doctor is at the mercy of the internal time stamp recording the entries made. The Board will always take the computerized records time over the testimony of the most trusted or credible doctor. If a physician never “completes” or closes an electronic medical record, the logical next question is why not? If it is to add information not yet known, make an addendum. Any other reason makes the true timing of any entry suspicious.

Delays in completing records are also viewed with suspicion by any reviewer of the records. At best, the suspicion will lead to an understanding of innocent tardiness arising from the number of patients seen. However, the records could be interpreted as sloppy, incomplete or inadequate due to shortcuts used by an overworked practitioner trying to see too many patients. At worst, the delay could be viewed as an attempt to hide, change or use the records to commit fraud against the patient, the governmental agency, or insurer paying for the service or as a means to intentionally deceive the regulatory agency. (NOTE: If these are descriptions a bureaucratic agency might come up with, imagine what a sly lawyer could manufacture to be an evil motivation for an inattentive doctor).

All these reasons should compel the doctor to always take the time necessary to routinely and habitually complete records immediately after the service is rendered. It is not just busy-work meant to slow the doctor down from providing care, it is an essential part of completing excellent care. If done correctly, following the content requirements mentioned above are very valuable.

The Increased Importance of Medical Records

Many health care providers fail to understand the significance of how electronic medical records are used and thereby do not understand the critical importance of this paper’s thesis statement for success. Electronic medical records recording excellent and complete medical care assures proper communication with other health care providers essential for the continuation of a care plan. Good records can prevent questions by insurance or governmental agencies and bypass red-tape and bureaucratic obstacles to secure payment for services. Every other aspect of administrative or collection activities goes better with good recordkeeping habits.

The provision of medical care, while it may be efficacious to the patient and brilliant, is meaningless unless there is proper documentation of the history, clinical data, description of procedures, discussion of differentials, and description of a care plan. The days of a patient, medical staff, regulatory agency, jury or a payor of medical services of “taking the doctor’s word for it” are a thing of the past. Health care providers who have habitually ignored or resisted the move to electronic medical recordkeeping are kidding themselves if they believe they can finish out a successful career by living in the past.

Each health care provider should return to their training and conjure up visions of a tough mentor or professor, adept at the didactic method of teaching, who would test and ridicule any assumptions or conclusions relied upon by the physician or nurse in training. Medical records should contain the essential rationale as to how a health care provider arrived at a particular diagnosis and recite the history necessary to support such a diagnosis. Cutting and pasting the prior health care provider’s history while omitting the current changes, is wholly insufficient as the initial history usually has become inaccurate or omits new essential components. The temptation to take shortcuts by simply copying and pasting a prior entry is not effective in establishing a thorough record. In fact, it causes the integrity of the entire record to suffer.


PART TWO: The Special Evidentiary Status of Medical Records in Litigation


The Value of Medical Record Evidence

Few health care providers understand that statements recorded in medical records enjoy special protection and are assured admissibility by most of the tribunals in the United States. Both the Federal Rules of Evidence and the Texas Rules of Evidence define medical records as exceptions to the “hearsay rule” which enables statements to be used in a highly effective manner should there ever be any consideration of a physician’s care during a trial.

Hearsay is a statement purportedly made by someone else at a time when they are not under oath, which is used to prove the truth of the matter asserted. In other words, a statement made by an individual, other than the witness, cannot be used by that witness because they are not the “declarant” or the one who actually made the statement.

The hearsay exclusion has been a fundamental component of evidence law and is based on the fact that if a statement is sought to be introduced in evidence, the person who made the statement should be the one who reports the statement so the veracity of that witness can be tested by cross-examination.

The purpose of the rule is to allow only trustworthy evidence to be heard by the jury. In our adversarial system of justice, the trustworthiness of evidence is determined by how a person delivers the information after the veracity of the evidence is “tested” or proven to be true by cross-examination.

Medical records and statements of history, diagnosis and treatment contained in medical records actually meet the definition of hearsay. Unless some evidentiary rule created an exception, no statements relating to history, diagnosis or treatment could ever be referred to in Court, unless the patient and/or physician were called as live witnesses. Even then, each witness would be limited to testifying, in large part, to only what each individual actually said and not words that were spoken by the other.

The Rules of Evidence, however, create a unique exception to the hearsay rule which exempts certain statements from inadmissibility. Statements recorded in medical records are not excluded as hearsay, regardless of whether the declarant is available as a witness.

The hearsay rule and exceptions are identical both the Federal and Texas Rules of Evidence reads as follows:

Rule 802: The Rule Against Hearsay

Hearsay in not admissible . . . unless otherwise provided by these rules.

Rule 803: Exceptions to the Rule Against Hearsay

(4) Statements Made for Medical Diagnosis or Treatment. A statement that:

A. is made for – and is reasonably pertinent to – medical diagnosis or treatment; and

B. describes medical history; past or present symptoms or sensations; their inception; or their general cause.

The reason the exception exists is it is presumed that a patient, when talking to their physician about a medical issue, is truthful in expressing the facts to the physician. It also assumes that the physician is dutifully and contemporaneously recording those statements in medical records at or near the time the statements are made. Even the health care provider’s statements are presumed to be truthful and complete. This is a unique level of trustworthiness not given any other profession. This presumption arises from a strong belief that in matters relating to life or death, individuals seeking help will be truthful to a trustworthy provider who cares for the patient and committed to do no harm.

The rules of evidence allow the statements contained in medical records to be read to the jury or introduced into evidence because there is no need to test their veracity by cross-examination. The records are presumed to be accurate and trustworthy. In other words, the principles of evidence law supporting the admissibility of the statements is based on the fact that a patient is going to be truthful to their physician and that a physician is going to be careful and accurate in recording information in the medical record.

This unique status is also based on the important fact that the statements are recorded contemporaneously. That is, the principle is based on the fact that this recordation of statements, symptoms, diagnoses, and assessments is done at or near the time that the statement is heard or the condition is observed.

Health care providers fail to recognize this unique advantage and often fall into bad habits allowing medical records to be used as a tool against them when they are accused of medical malpractice.


PART THREE: Special Problems For Groups and Entries Not Timely Completed or Closed

Purchasing, installing and maintaining an adequate EMR system is a large investment for any medical practice. Because such systems are being forced on the medical community, the sellers of EMR software and programs have a constant source of buyers. Most solo practice doctors are being forced to join a group to share this expense. Proper use of an EMR system by a multi-physician group can bring great benefits. Consolidation of tests and data with updates being carried forward automatically is convenient. However, new problems like the mindless “cutting and pasting” of data may obscure new findings. Repeating invalid diagnoses may also lead to problems. (The misuse of “cutting and pasting” old histories and practical suggestions as to the best use of the EMR resource will be discussed in Part Four, below.)

A more serious problem can arise if the records are not well maintained, completed and closed on a timely basis.

Failing to Sign Off On or Close an Entry Puts the Physician Group at Risk

Failing to close an entry in a timely manner puts all the physicians in a large group at risk for the following reasons:

1. Failing to close the record violates the Medical Practice Act’s description of what a medical record must be.

If a complaint is filed on an unclosed record is sent to the Texas Medical Board, the physician could be sanctioned and disciplined for not maintaining timely, contemporaneous records. The sanction could be given even if the medicine practiced was absolutely perfect. Sanctions for record deficiencies are by far the most common disciplinary action taken by the Board. The Board can almost always find fault with some aspect of the physician’s records. This prompts a fine and disciplinary action consisting of at least a risk management and records CME.

2. Failing to close the record also undermines the integrity of the records.

From the earlier discussion, you can see that the Rules of Evidence give credence to a physician’s comments mainly because they were contemporaneously recorded. Leaving a record open destroys that assumption and also gives rise to a presumption that the record was left open for a sinister reason. If a medical record, which has been left open, is copied and produced to a subsequent treating physician outside the group, or if another Clinic physician participates in the care, it prevents the record from being complete and raises red flags on the EMR system.

Failing to close any entry is never a good idea or necessary. If later information is learned, an addendum entry can always be made. Leaving these records open, even if discovered on an unrelated chart produced by some other physician, will put South Texas Spinal Clinic on the Medical Board’s watch-list and generate complaints, investigations and possibly disciplinary sanctions.

3. Leaving the record open also allows allegations to be raised by adversaries of South Texas Spinal Clinic that the records are fraudulent.

A common tactic for attorneys investigating a lawsuit is to have the injured or unhappy patient, (or the patient’s litigious family member), innocently request a copy of the records. This is a common occurrence. After reviewing these records, the lawyer thinks a case might be worth pursuing so he or she sends a Notice of Claim letter to the physician involved with a second request for the records to be produced. Why is a second request made? The attorney already has the records. The law requires the Notice of Claim letter to include an authorization and allows the doctor’s attorney or insured to obtain records of other physicians to investigate the doctor’s defenses. The attorney will carefully review each and every page of the second set of records produced to see if any entry was changed. The attorney will also be very interested if certain pages or parts of the record were included in one copy and not in the other.

Here is a scenario which an unclosed record can create:

A patient of South Texas Spinal Clinic with a complaint against a Clinic physician or some other physician contacts an attorney to see if a lawsuit is justified. To investigate the complaint, the attorney has the patient request medical records from multiple health care providers who have cared for his client. The seemingly innocent request is processed and copies of entries never closed or signed are copied and produced.

Then a Notice of Claim letter is sent, the possibility of a lawsuit is raised, and the records are produced a second time. A South Texas Spinal Clinic physician, now worried about a claim, may go back in and complete an entry. If this is done, the date will be automatically recorded later than the notice of claim. This late closure of the record (no matter how innocent the change) will be viewed as a fraudulent entry. Anything added will be seen as a self-serving protective statement and will be used to condemn the doctor.

Requesting the “audit trails” saved in the EMR system is in any lawsuit. The date and time the entry is closed is recorded and cannot be changed. Therefore, the “late entry” will be discovered and exposed.

The scenario described above will raise the legal doctrine of “spoliation.” Spoliation is when a medical record is altered or destroyed when litigation is threatened. When even innocent spoliation is found, the judge is able to give an instruction advising the jurors that everything in this record should be disregarded and presumed to be averse to the doctor and contrary to the truth. In other words, the entire record of South Texas Spinal Clinic is declared to be “unreliable” and the jury is instructed to disregard any favorable comments which may serve as a fundamental part of the physician’s defense.

This is devastating in a lawsuit and almost assures that negligence will be found or that a large judgment (based upon more evil intent) could be reached by the jury.

Unfortunately, this problem does not just fall on the physician who may have failed to close the entry and completed it at a later time which is recorded by the internal clock of the EMR. Records left open can hurt every physician who authors records for South Texas Spinal Clinic. Once it is known by attorneys who handle personal injuries claims, South Texas Spinal Clinic could be targeted as a practice group which has vulnerable records. This will make marginal lawsuits be filed and become valuable to those who seek to profit when an untoward outcome occurs with South Texas Spinal Clinic patients.

A Personal Note about my experience in Protecting South Texas Spinal Clinic Physicians through the years:

Physicians of South Texas Spinal Clinic enjoy an excellent reputation. Many cases which have been filed and handled by my office have been completely resolved or non-suited because of the integrity of the physicians and the completeness of the medical records.

South Texas Spinal Clinic doctors should know and understand that their actions are constantly being observed by nurses, technicians, product representatives and individuals, both inside and outside the practice. Records are being evaluated, relied upon and used in the plans of care of physicians who are not part of South Texas Spinal Clinic. Many trusted individuals may subsequently find themselves in the employ of a plaintiff’s attorney or a health insurance company’s audit department. Such individuals may become a “mole.” A mole is a person who, for a Christmas gift from a lawyer, will funnel cases where that individual knows a bad outcome has occurred. Preserving the integrity of South Texas Spinal Clinic and its reputation for excellent, well-documented care has been an essential tool which has allowed me to get many cases dismissed. If that tool is rendered ineffective by records not properly closed, the price paid could be enormous.

4. Leaving a record open hurts even if a lawsuit is not filed.

Oftentimes, records are requested by insurance companies, governmental agencies or other regulatory agencies. After they are requested from other entities which may contain a copy of South Texas Spinal Clinic records, the records of South Texas Spinal Clinic may be requested independently. If the entry has been changed at the time it was closed, this discrepancy is called to the attention of the reviewer. If that reviewer is a person who works at the Texas Medical Board, an independent investigation can be launched even without any patient complaint. If that reviewer is a governmental payee or payor, or an insurance company payor, it may prompt an internal memo which delays payment of every charge submitted by South Texas Spinal Clinic. When records lose credibility, it could cost thousands of dollars in just delayed payments alone and could be devastating if large reimbursements are disallowed because of these record inconsistencies.

5. Audits by governmental agencies, insurers, now common at hospitals, are on the horizon for private physician offices. Such audits will reject or condemn records left open and use any deficiency as an excuse to reduce reimbursements.

Like it or not, the many ways EMR’s will be used in the future are frightening. EMR systems, now mandated by the Texas Medical Board for almost all records, are soon going to be something which can by audited by the Medical Board, or some other governmental regulatory agency. The Medical Board, insurers or governmental benefit programs, are only one step away from not only requesting medical records and billing, but will soon request the “audit trails” which show how and when entries were opened and closed. The audit will likely flag repetitive “cut and pasted,” entries.

This is already common practice among hospitals which is why hospitals require such severe penalties and push physicians to complete their records within a certain period of time. Losing staff privileges for record abnormalities used to be laughed off as the bane of an effective and busy practitioner forced on them by hospital administrators more focused on paper than patients. This is now a tool which can be used against the practitioner.

Open or unsigned records could give a hypercritical auditor reason reject the record, or use the deficiency as an excuse to delay of reduce reimbursements for services provided. Having records which are above reproach, complete and timely will prevent a host of problems generated by open-ended records.


PART FOUR: Practical Application

Equipped with the information above, the practitioner should endeavor to maintain the good habits developed through years of practice and adopt any changes necessary to allow documentation to be a friend as opposed to a tool which calls the physician’s credibility or motivations into question.

Practical implementation of the ideas expressed should prompt the practitioner to develop and maintain these compulsive routines:

Good habits:

1. Complete documentation simultaneously with care or as soon thereafter as possible;

2. If possible, do the documentation in front of patient asking for confirmation;

3. Use every tool available (scribes, dictation equipment, voice recognition software);

4. Avoid copying and pasting outdated histories or exams from other parts of the record. If information is simply repeated, explain why it is included;

5. Always include a statement about routine activities which happen during every visit. (“All of the patient’s questions were answered,” “plan of care reviewed again at time of discharge” or “Patient told to return if new concerns arise.”);

6. Timely close and sign the record (remember, the internal clock is running and doesn’t lie); and

7. Confirm the patient’s understanding in the record.

Practical suggestions in dealing with EMR prompts:

If the physician wants to cut and paste a prior history, mention that the information came from a previous record and follow it with a statement of any new findings. Brief statements at the beginning and end of a previous history could be:

“The prior history presented by this patient was ...”

(prior history)

“Updates to the history at the time of this examination include ..

To avoid cutting and pasting a previous summary, but to assure that it can be used if needed, one could also begin a note:

“The previous history is not repeated, but has been reviewed. The findings and history are unchanged, except…”

Alternatives to the method stated above would refer any subsequent physician to the prior summary for more details, but only elucidate the new information as of the time of that health care provider’s examination. For example, a record which begins:

“The detailed history is as above; however, the specific findings relevant to this presentation include ...

This could be followed with a description of only the pertinent history and/or findings necessary for that patient encounter.

If the template embedded in the EMR requires the physician to note any exceptions to normal findings and directs the physician to a template including multiple normal findings, a challenge is presented to the health care provider. For example, many of the normal findings contained in such an all-inclusive list cannot be determined to be normal without some specific examination or test. In essence one cannot check-off a normal neurological exam unless all of the relevant nerves have been tested. After a comprehensive list of negatives is automatically printed, it may be appropriate for the physician to add:

“Only pertinent routine tests were done”.

At a minimum, this makes the recipe-style examination somewhat focused on most significant clinical realities.

Always end with a strong inclusive global statement of things which are always part of your routines:

“All pertinent options, tests, and risks were explained as the plan of care was discussed. The patient understands the diagnosis and agrees with the plan of care after all questions were answered. Patient also understands to call or return if any new concerns arise.”