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How To Maintain Humanity In An EMR World Law360, New York (January 08, 2014, 2:02 PM ET) -- “It has become appallingly obvious that our technology has exceeded our humanity” —Albert Einstein Electronic medical records are here to stay and in many ways they are extremely beneficial to patient care. However, the medico legal risk of the same has not yet been fully realized, and the possibility that the risk of litigation will increase with the use of EMRs is very real. Attorneys who work with medical professionals, risk managers and medical liability insurers need to be aware of these risks and prepared to counsel their clients on how to ameliorate the same.
Concerns with EMR Anyone who has worked in the medico legal field for any period of time knows that often the top criticisms alleged when medical providers are sued are weak medical records, communication problems and inattention to the doctor/patient relationship. While the advent of EMR may temper the first basis, there is a substantial risk that it will stymie the ability of a provider to adequately communicate within the system and with the patient. Recently, the Centers for Medicare and Medicaid Services announced a one-year extension of Stage 2 of the Meaningful Use deadline. This Stage involves transmission of records between doctors in different EMR systems and is meant to encourage systems that will “talk to one another.” This is a great place to start in counseling your clients. They must not depend on the records talking to one another, and must instead continue to communicate interpersonally with each patient’s other providers. It is not enough to place a record in the EMR and assume that the information will be relayed to other providers. First of all, the technology cannot always keep up with real life. A recent publication revealed that after the April 13 Boston Marathon bombing, the number of injured patients overwhelmed the EMR in some of the Boston emergency departments. “Emergency Department Electronic Record Systems Fell Short in Boston Bombing,” Otto, M. American College of Surgeons, Surgery News, Dec. 4, 2013. Communications between care givers is one of the more difficult components of care in these mass casualty events, and the EMRs may not yet be advanced enough to meet providers needs in circumstances where timeliness and accuracy matter most. Therefore, attorneys should counsel their clients to continue to consider having paper charts available and to be willing to convert to the same if the situation demands. Hospitals and doctors cannot be so reliant on the EMR that they are no longer flexible enough to return to the basics. This type of inter-provider communication is even more important in less intense situations. While the EMR is arguably best suited for internal medicine clinics, there is a great deal of risk there as well. Internal medicine doctors are often charged with the task of being a gatekeeper and ensuring that a patient’s care is optimized through referral to various specialties. While common sense may say that no one can be expected to tend to a gate they do not know exists, patients (and lawyers) often do have this expectation of their physicians and hospitals.
Someday the EMR may be advanced enough to ensure that a doctor is alerted to every study that comes in on one of their patients without saturating a medical record with so many alerts that they lose meaning. Until then, providers must use interpersonal communication as an adjunct to the medical record. Before EMR, a doctor would pick up the phone or walk down the hall to speak to a referring physician about a worrisome study or an upcoming surgery. A nurse would stop a resident in the hallway to discuss changes in a patient’s vital signs. These practices cannot be substituted with the press of an enter button. Providers must continue to communicate with one another. Another aspect of Stage 2 of the Meaningful Use deadline is the mandate regarding communication with patients. Under the Stage 2 requirements, at least 5 percent of patients need to send messages to their doctor using digital records and 5 percent need to access their health information on line. While this may increase efficiency and in some ways may increase the number of communications between doctor and patient, quantity and efficiency must not take precedence over quality of communications. Medical health providers need to continue to have real, substantive conversations with their patients. While medicine is not known as one of the humanities, there is an argument to be made that it is an art and not a science. There is great diagnostic value in a real-time conversation between provider and patient, as it gives the opportunity for the provider to ask questions and gives the patient an opportunity to say things that he may not be willing to put in an email. This type of communication is imperative to patient care, and good patient care always leads to fewer lawsuits. In-person doctor to patient communication is also vital to developing the doctor/patient relationship, which may be the key component to risk management. Over 15 years ago, there was a study published in the Journal of the American Medical Association that illustrated the importance of communication for primary care physicians. That study compared physicians who had never been sued to those who had been sued more than two times, and found that those primary care physicians who had never been sued spent three minutes longer with each patient, laughed more with the patients and engaged in more active listening. JAMA, 1997, 277(7), 553559. Clearly, none of these are even possible within the confines of an electronic medical record. Therefore, primary care physicians who are striving to comply with Stage 2 of Meaningful Use must ensure that they do not do so at the expense of their relationship with their patients, or they may see an increase in lawsuits as a result.
What’s the Balance? The push toward implementation of EMR makes it very challenging for risk managers, physicians, nurses and other health professionals to prioritize relationships over efficiency. However, it is important for those who work in these fields to remember to find a balance. First, they must be willing to revert to old fashioned paper records when the situation demands the same. Emergency departments should consider ensuring they have procedures in place to revert to such documentation if the situation calls for it. Medical health professionals in every field need to be encouraged to engage in fact to face or telephone consultation as an adjunct to the EMR, and primary care physicians especially need to converse with other specialists, and document the same. Finally, and perhaps most important, doctors need to remember that the EMR will never be as important to their practice as good old fashioned relationships. Technology certainly has its place, but it must never come between a doctor and his patient. —By Heather Hansen, O'Brien & Ryan LLP Heather Hansen is a partner with O'Brien & Ryan LLP in Plymouth Meeting, Pa., and a litigator who has tried cases in Philadelphia County, the surrounding counties and the federal courts. She has successfully defended hospitals and physicians in complex medical negligence litigation. A substantial portion of her practice involves catastrophic obstetric and orthopedic claims. Hansen
has also lectured on these issues and has co-authored chapters in medical texts regarding medical malpractice litigation. She frequently provides legal analysis for TV news outlets, such as CNN and Fox News. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. All Content Š 2003-2014, Portfolio Media, Inc.