Some electronic health record (EHR) systems do not offer integrated texting apps, which can lead to the use of texting apps that require a separate process to transfer texts to the patient record. Unfortunately, text messages frequently do not find their way into the record.
When text messages about patient treatment are not included in the medical record, there can be gaps in the treatment/progress chronology and absence of justification for treatment decisions.1 Unlike the days of paper records, where gaps in the records either stayed unfilled or were explained with testimony during malpractice litigation, today, text messages can be resurrected and used as evidence.
Text messages between colleagues or with patients can be used by plaintiffs to challenge defendants’ honesty or otherwise diminish their jury appeal. Deleting offensive text messages from a phone is generally ineffective, since text messages are stored in various places in message sender and receiver devices and on the cloud (i.e., metadata), which makes them usually recoverable. A defendant’s deleted text messages can be requested, subpoenaed, printed, and presented as evidence.
In the following case,* the nurse practitioner’s (NP’s) own text messages were used to challenge the truth of her testimony in deposition. It was clear to the defense team that the text messaging exchanges between the NP and a registered nurse (RN) would be used to impeach the NP if the matter went to trial, with the objective of showing the jury that the NP did not deserve to be believed since the text messages indicated she lied under oath in her deposition.
Text messages, like medical record entries, are documentary evidence, which can carry more weight in litigation than testimony based on memory.
Case File
Issue: Text messages impeached the defendant’s deposition testimony.
Day One
7:00 a.m. A patient with multiple comorbidities underwent inpatient right shoulder surgery. The orthopedic surgeon did not note any surgical complications.
12:00 p.m. The patient complained of numbness and loss of function of her right arm to the RN, who reported it to the orthopedic surgeon’s NP. The NP thought the patient’s symptoms were being caused by the nerve block given pre-operatively. She continued standard post-operative care.
Day Two
8:00 a.m. The RN documented that the patient had continued complaints of numbness, tingling, tenderness, limited movement, and significant arm pain that was not being relieved with medication. From this point forward in the nursing notes, the patient was noted to be whimpering and moaning in pain, which she reported at 10/10.
8:30 a.m. The NP documented in the progress notes, “Examined the patient. Mild numbness.”
9:00 a.m. The hospitalist noted right arm pallor, coolness, and paresis. A bedside Doppler showed weak pulses. He ordered a Doppler arterial ultrasound and a neurology consult. Although he did not document it, he asked the RN to share the results of his examination with the orthopedic surgeon and to call him with the Doppler arterial ultrasound results.
10:00 a.m. The Doppler arterial ultrasound was completed.
11:00 a.m. The Doppler arterial ultrasound was available in the picture archiving and communication system (PACS). It showed no radial, ulnar, or brachial pulses, and an injury to the axillary artery.
4:00 p.m. The radiologist entered his report on the ultrasound in the EHR but he did not directly contact anyone about the findings.
5:00 p.m. The hospitalist accessed the ultrasound results in the EHR and realized the patient needed a vascular surgeon. He requested a STAT consultation.
6:00 p.m. The hospitalist documented that no one brought the results of the Doppler arterial ultrasound to his attention.
7:00 p.m. The patient was taken to surgery for axillary artery exploration with possible revascularization and fasciotomies as an alternative to amputation. However, the revascularization was unsuccessful and the patient ultimately underwent an upper arm amputation.
Day Three
The hospitalist asked the RN why she had not informed him of the Doppler arterial ultrasound results. She told him she had informed the NP. The hospitalist wanted to know why this wasn’t entered in the patient’s medical record. To prove the conversation took place, the RN forwarded screen shots of her text messaging exchanges with the NP.
The patient sued all members of the healthcare team for delayed diagnosis and management of the arterial injury resulting in amputation.
Discussion
The NP’s documentation in the medical record was sparse. She had deleted the text messages from her phone and had not informed her attorney of the text message exchanges that had occurred between her and the nurse. To fill the gaps in the record, the NP explained to her defense team that the patient’s arm was completely normal the morning of Day 2 when she examined her, except for slight numbness, which the NP did not believe was significant. She surmised the patient’s condition must have declined very quickly, since she did not know anything was wrong until one of her colleagues told her the patient was in surgery. Unbeknownst to the NP or her attorney, during discovery the hospitalist’s attorney had provided the plaintiff’s attorney with the screen shots of the text messages the RN had forwarded to him.
Combining the text message exchanges, the EHR entries, and the EHR audit logs, the plaintiff’s attorney was able to challenge the NP’s deposition testimony that the patient’s arm and hand were normal except for patient reports of “mild numbness.” For example, during the NP’s testimony, she denied the patient’s hand was cool during her examination at 8:30 a.m. and documented her skin was “normal.” However, a text message from the RN to her minutes later stated the patient’s hand was cool. Furthermore, at 9:00 a.m., the hospitalist documented he found the hand cool to the touch and feeble pulses in the arm.
Later in her deposition, the NP denied being aware that the hospitalist ordered a Doppler arterial ultrasound. However, she was then shown the RN’s text to her at 9:30 a.m. informing her it was ordered. In response to this challenge, the NP changed her testimony, stating she did not remember knowing that the ultrasound was ordered; but if she did, then she would have advised the orthopedic surgeon about it. The orthopedic surgeon denied being advised and there was no documentary evidence of the exchange.
Finally, the NP initially denied ever seeing the bedside Doppler report, but after being shown a text message from the nurse with the results, she again claimed to not remember seeing it, and again testified that she would have told the orthopedic surgeon about the weak pulses if she had seen the report. EHR audit logs also indicated she had accessed the bedside Doppler report in the morning of Day 2. When she was shown the audit logs, she suggested someone else in her office logged in as her. The orthopedic surgeon denied being advised of the bedside Doppler findings.
In addition to the text messages impairing the NP’s credibility as a witness, in several of the NP/RN exchanges they characterized the patient’s pain as exaggerated and her complaining as attention-seeking. Based on her belief that the patient was exaggerating her level of pain, the NP discontinued her intravenous pain medications. As the patient’s complaints would have been legitimate based on the outcome, the NP’s decisions about pain control and mockery surrounding the patient’s pain created an additional challenge to the defense team.
Texting Orders
CMS conditions of participation prohibit texting of patient orders in hospitals2 and The Joint Commission prohibits texting of patient orders in any healthcare setting.3 However, both CMS and The Joint Commission allow texting other patient information among hospital healthcare team members when it is done through a secure platform.2,3
Risk Reduction Strategies
Text messages containing health-related information pertaining to a patient for the purposes of treatment are part of the medical record and should be retained for specific time periods required by law. Just as if portions of the hard copy or electronic medical record were destroyed or lost, the disappearance of relevant text messages can complicate the defense of a medical malpractice claim. Consider the following strategies.
Clinicians and Staff
- Know and follow your employer’s policies on the use of cellphones (personal and company provided), including personal and work-related texting while providing patient care.
- Use a secure system that automatically saves messages in the EHR.
- If the system does not automatically save messages, manually preserve in the patient’s medical record all text messages with or about the patient’s healthcare and treatment.
Operations
- Develop a system to ensure that all text messages used for clinical decision-making are automatically preserved in the medical record.
- If a messaging application does not automatically interact with the EHR, develop a policy and system to ensure that texted communications do not slip through the cracks. Consider replacing a system that does not automatically interact with the EHR.
References
1. Alice G. Gosfield. “Compliance Pitfalls in Electronic Documentation.” In Health Law Handbook, Fourteenth Edition. Eagan, MN: Thomson Reuters; 2020.
2. Director, Quality, Safety and Oversight Group. US Department of Health and Human Services. “Texting of Patient Information among Healthcare Providers in Hospitals and Critical Access Hospitals (CAHs).” 12/28/2017. Revised 1/5/2018.
3. “Can Secure Text Messaging be Used to Communicate Patient Care Orders?” The Joint Commission. 12/ 28/2017. Last reviewed: 4/27/2022
* Case study includes elements from the case study in Eric Abbenhaus, Srinath Kamineni. “Shoulder Arthroplasty Death With Axillary Artery and Brachial Plexus Damage: Lessons from a Tragedy.” JSES International. 2020; 4(1): 133-137. DOI: 10.1016/j.jses.2019.09.001
