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Time-stamped electronic medical record (EMR) entries have been devastating for some EPs defending themselves against malpractice allegations, but these “smoking guns” often are very misleading.
“The time of the stamp is the time of the computer entry, not the time of the event. It has nothing to do with when the event occurred,” explains Michael Jay Bresler, MD, a clinical professor of emergency medicine at Stanford (CA) University School of Medicine. He includes this statement in every ED chart: “The times documented are the time of computer entry, not necessarily the time the event occurred.”
“I have seen this be a problem in litigation,” Bresler says. “The EP and expert witnesses then have to explain it away on the witness stand.”
Timestamps can make the EP’s care appear negligent to experts hired by plaintiff attorneys to review the ED chart. “They may base a case on delayed administration of a drug in a critical situation, for example, and it comes out, only after years of depositions, that isn’t what happened,” Bresler says.
Kathleen Shostek, RN, ARM, CPHRM, vice president in the healthcare risk management and patient safety division of Sedgwick, a third-party administrator for professional liability claims, has seen ED cases in which timestamps were dated minutes or hours after the patient actually was examined. This opened the door for the plaintiff attorney to allege care was delayed.
“On retrospective review, this creates a misleading understanding as to when patients were actually seen or treated,” Shostek explains.
If computer clocks are not synchronized hospitalwide, EMR timestamps will indicate gaps or delays incorrectly. Shostek gives this example: An ED patient with chest pain is seen at 23:55 on Dec. 31, 2016. An ECG is performed at 23:57. The ECG is uploaded, read, and interpreted. At 00:30 on Jan. 1, 2017, the ED physician documents the exam and orders admission for ST-elevation acute myocardial infarction (AMI).
However, upon review of the case, the timestamps tell a different story. They indicate the ECG was ordered at 23:57 but not completed until Jan. 1, at 00:45. This is 15 minutes after the EP’s note stating that the ECG was completed showing ST-elevation AMI. This allows the plaintiff to cast doubt in the mind of the jury as to whether the ECG was delayed. In such cases, Shostek says “other evidence will be required to prove that the care and treatment were expediently provided.”
Here are some other ways EMR timestamps can make ED care appear poor:
Dean Sittig, PhD, professor in the School of Biomedical Informatics at the University of Texas Health Sciences Center in Houston, says “it is common for docs and nurses to chart after the fact, and the audit trail makes it clear exactly when the documentation took place.”
If such charting occurs after an adverse event, EP defendants’ credibility is marred. “Although charting at the end of the shift, or even from home, routinely occurs, plaintiffs will argue that this after-the-fact charting represents an attempt to cover up the problem,” Sittig says.
Ken Zafren, MD, FAAEM, FACEP, EMS medical director for the state of Alaska and clinical professor of emergency medicine at Stanford (CA) University Medical Center, reviewed a case involving a patient at a skilled nursing facility on anticoagulants who fell and hit his head. Retrospective time-stamped entries became a key area of focus.
“There was only one entry, time-stamped long after the fact, but it was not believable,” Zafren says. “I don’t know if this possible attempt to buff up the record was a factor in settling the case, but it certainly might have been.”
The medical director ordered neurological checks every 15 minutes. “The neuro checks documented a headache that did not lead to any action,” Zafren notes. The patient was taken to the closest ED only after having a seizure. “By the time the patient was intubated and a CT scan was done, there was an inoperable fatal intracranial hemorrhage,” Zafren adds.
The neurological checks were charted by a nurse to have occurred every 15 minutes on the hour and at 15, 30, and 45 minutes after the hour. The charting was completed several hours later, according to the timestamp. “I was prepared to testify at trial that the post-hoc charting cast doubt on whether neurologic checks occurred,” Zafren says.
At the time the neurological checks were charted, the patient had already died at the hospital. As a plaintiff’s expert, Zafren questioned whether the neurological checks were really performed as documented. “It is understandable that a busy nurse may document events after the fact,” he explains. “But if the nurse was too busy to document the events contemporaneously, it was unlikely they occurred exactly at 15-minute intervals.”
The EP was not named in the case, but attempted to help the defense of his colleague by developing a timeline based largely on the timestamps in the hospital record. “The EP alleged that even if the patient had been brought immediately to the hospital after the fall, by the time he could have had a CT scan and been taken to surgery, it would have been too late to save him from a fatal outcome,” Zafren says.
If timestamps show an ED patient underwent a test at 10:00 p.m., but the EMR shows that no one reviewed the results until 1:30 a.m., possibly because of a shift change or other issue in the ED, “the timeliness of response and patient care may be questioned,” says Ron Sterling, who advises healthcare organizations on electronic health records and medical professional liability. Sterling is author of Keys to EMR/EHR Success: Selecting and Implementing an Electronic Medical Record (Greenbranch Publishing, 2010).
If the EP didn’t review all the relevant laboratory results until the end of the shift, possibly after the patient was sent home, Sittig says “this will be abundantly clear.”
ED patients with test results pending at discharge are fraught with legal risks, Sittig notes. The EMR makes it clear when the test results came back, and when, if ever, the EP contacted the patient. “These cases are often not recognized for a year or more; for example, in the case of an abdominal X-ray result that also shows a tumor in the lower part of the lung, possibly indicating early stage lung cancer,” Sittig says.
In the days of paper records, an EP’s testimony stating “I never saw that result until this case was filed” often went unchallenged. Before EMRs, there usually was no way for the plaintiff to prove otherwise. Now, if the EP did see the result, the audit log shows the exact time it occurred. “At that point, all the EP can do is settle. He or she has lost the case,” Sittig says.
Sittig says ED cases with these fact patterns are particularly difficult to defend:
-The patient is discharged before the test is performed;
-The patient is discharged after the test is performed, but before the result is available.
“In the first case, the EP may assume that the test was completed, when it was not,” Sittig says. In the second case, the EP doesn’t always have an easy way of contacting the patient or their primary care physician about an abnormal result.
If a patient is in the ED for hours, EPs might pop their head in to ask how he or she is doing, conduct a quick reassessment, or inform the patient that some labs are back but others are still pending. However, not all these interactions are documented. “Just because the documentation says you talked with the patient at 11:59 doesn’t mean you didn’t speak with them five other times,” Bresler says.
EPs must make certain all relevant activities are recorded on a timely basis, Sterling explains. “Otherwise, the audit record may be taken as is, causing problems for the defense.”
Batching timestamps for orders or medication administration is one example. This is a very serious flaw, according to Bresler. “It is basically falsifying information on a legal document.” For example, the EP may order a crucial drug at 12:01 for a critically ill patient, but the order isn’t documented until 12:15. This makes it appear as though the EP’s treatment was below the standard of care.
“The issue of batched orders has come up in litigation in which I’ve been an expert witness, making it appear that the doc was dilatory in ordering crucial meds,” Bresler explains.
Surprisingly, some EMRs are capable of backdating previous records. If an ED patient’s reported allergy is inserted into previous records, it makes it appear as though the allergy was documented at an earlier point in time. In the event of litigation, Bresler says “what it shows in discovery is that you gave a drug that the patient was allergic to.”
Graham Billingham, MD, FACEP, chief medical officer of Fort Wayne, IN-based MedPro Group, says it’s important for EPs to be aware of the type of information that the EMR collects, and how the time-stamped entries appear.
“Chart audits can be included in the ED’s routine quality improvement initiatives,” he suggests, adding that the audit process should focus on high-risk diagnoses, such as pediatric fever, abdominal pain in the elderly, and chest pain.
“It would be wise to review EMR functions associated with potential problems, such as drop-down menus, copy and paste, and auto populate,” Billingham adds. He recommends EDs obtain an independent audit on a regular basis to provide feedback on the quality of EMR documentation.
“Review printed copies of patient records from recent visits, along with the associated metadata,” Billingham advises. “Ensure they adequately represent the care provided and justify clinical decision-making.”
Sittig adds that if the ED patient takes a turn for the worse between the time care is given and the time it was documented, “it always makes it harder to explain what really happened.”
To help a jury understand how EMR charting works, a defendant could show in the audit log that the EP documented multiple patients one after the other at the same time. “This would illustrate that she was working on several patients, and then when she had a free minute, or the end of the shift came, that she then documented all her actions at once,” Sittig says.
When reviewing the EMR audit log during discovery, attorneys typically search for all the EP’s interactions with the plaintiff. Instead, Sittig says “maybe we should look for all interactions by the defendant, regardless of patient. This would help recreate the defendant’s actions during the time in question.”
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Author); Jonathan Springston (Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).