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Malpractice suits often tap electronic medical records


ANAHEIM, Calif. — Electronic medical records can save money and improve medical outcomes, but using them incorrectly can create significant liability problems for health care providers, defense attorneys said.

In the overwhelming majority of cases, medical records are the “single-most important piece of evidence” in medical malpractice lawsuits, said Craig R. Merkle, a partner at Goodell, Devries, Leech & Dann L.L.P. in Baltimore.

“The plaintiffs seek to use it as a sword, and we seek to use it as a shield,” Mr. Merkle said during a Monday session at the American Society for Healthcare Risk Management's annual conference in Anaheim, California.

Issues include efforts to manipulate time stamps and contents, autofill problems and failure to enter comments when warranted, said Marianne DePaulo Plant, a partner at Goodell DeVries, who also spoke at the session.

In particular in discussing audit trails, or computers' ability to track the use of medical records, Ms. Plant said doctors are not always aware that when they make a change in a medical record it is “there and easily found-able, yet some of the least sophisticated plaintiff attorneys are well aware” of the information and routinely ask for it to prove providers' failure to review the medical records.

In one case involving an allegation of an inappropriate discharge, a doctor alleged she spoke with a nurse about the case and reviewed the records at home, but the audit trail revealed she had not told the truth and “cut the legs out” from under the case, Ms. Plant said.

The attorneys said other cases involve instances in which health care providers try to retroactively make changes to electronic medical records, in the mistaken belief it will not be discovered.

Other problems arise, they said, in the use of templates, which automatically fill in information that may not be correct. In one case, the template in the electronic medical record indicated a patient had had hip surgery, when the surgery was on her spine.

Templates are “fraught with peril and, as a defense lawyer, templates give me more heartburn than any other part of electronic medical records,” Mr. Merkle said.

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