Although electronic health records (EHRs) have many benefits, studies reveal unexpected patient safety and liability risks associated with their use. The speed at which EHR technology is advancing and the speed with which hospitals and medical practices are implementing these systems can partially explain this increased risk exposure.1 Optimizing an EHR (using it to its full potential) can deflect some of this risk. However, the importance of optimizing an EHR can be overlooked amid the struggle to provide quality patient care while complying with regulations and participating in government incentive programs.2
A medical record serves many purposes. In addition to communicating medical information and providing proof of services rendered for billing, medical records are a primary means of showing compliance with the standard of care in medical malpractice litigation.3 One of the more difficult issues for defense attorneys to overcome in malpractice litigation is a medical record that cannot be confidently presented to a jury as evidence of appropriate medical care. EHR “efficiency tools” (such as copy/paste, cloning and templates) have added new twists to old documentation problems (e.g., using templates that default to normal is similar to documenting by exception) and has created entirely new challenges (e.g., uncorrected pasted text in a wrong patient’s medical record). Some documentation problems persist no matter the medical record format (e.g., late additions and corrections).
The NORCAL best practices and closed claims case studies linked below illustrate how EHR optimization and ensuring the proper use of EHR efficiency tools can increase patient safety and decrease malpractice liability risk.
EHR Cloning by Dictation
A less common, but equally risky practice is cloning by dictation. This hybrid process may be utilized by physicians who prefer dictation over typing. During litigation in one case, the defense attorneys asked the physician why all of his hospital progress notes contained identical phrases. He explained that his practice was to pull up the prior day’s progress note and dictate a new progress note by reading the prior one. Because this particular patient’s condition was not changing very much from day to day, the progress notes were identical.
EHR Cloning-Related Record Inaccuracies and Late Corrections
Physicians have a professional responsibility to maintain current and accurate information in the medical record. Consequently, physicians who clone need to make sure that information pasted, pulled forward and template-generated is edited to the degree appropriate for the purposes of the patient encounter. Multiple copies of the same report, late corrections, the wrong patient information and blocks of text repeatedly copied in the EHR are frequently identified by plaintiffs’ attorneys in the discovery phase of a malpractice suit.
EHR Note Bloat: More Isn’t Always Better
“Note bloat” refers to extraneous, repetitive information in medical record documentation that has been generated by an EHR. Although it is important to keep liability risk management, billing, research, compliance, etc., in mind when documenting, the principal clinical mission of a progress note is promoting quality patient care and facilitating communication and coordination of care among other healthcare team members.
Managing the Risks of Using EHR Efficiency Tools
Copying and pasting, pulling forward and using templates that generate pre-composed text are forms of “cloning.” Cloning functions are sometimes referred to as “efficiency tools.”4 Efficiency tools may speed up the documentation process, but if their use creates unnecessarily redundant or inaccurate medical record information, they not only can increase professional liability and billing fraud risk, but also can jeopardize patient safety by disrupting physician communication.5
For example, a record created by efficiency tools may include:
- Information that belongs to a different patient
- Attestation statements from the wrong physician
- Vital signs that never change
- Text that is identical to entries in the physician’s other patient records
- Personal pronouns that switch back and forth between genders
- Documentation of obviously incorrect normal examination findings (e.g., documentation of a normal cervix in a patient who has had a total hysterectomy)
Some cloning-generated inaccuracies and irregularities are obvious, but less obvious cloned medical record documentation can be equally damaging in malpractice litigation. There will undoubtedly be a problem with the defense of care when a physician would have to answer “No,” or “I can’t be sure,” to the question “Did you actually provide the services documented in this note?” The integrity of EHR information is vital to the defense of a malpractice claim. Plaintiffs’ attorneys are known to capitalize on problematic medical records by alleging patient information has been willfully obscured or withheld, is missing or has been destroyed. Allegations such as these undermine the credibility of a physician in the eyes of a jury and can persuade the jury to side with the patient, even when the medical care is appropriate.3
For evidentiary purposes in a medical malpractice case, the medical record, which is usually presented as a printout, should tell a compelling story about the physician’s excellent care of the patient and should reflect the physician’s professionalism, medical knowledge and empathy. It is possible to create this type of record using cloning, but cloning techniques must be used sparingly and thoughtfully. A record that stands up in litigation will also have qualities that promote patient safety and reduce the risk of Medicare billing fraud.
An EHR Cloning Primer
Different types of cloning can cause different patient safety, litigation and billing issues. Sometimes a single record may include various forms of cloned text. In the end, how the cloning is defined matters less than what it has created. The following descriptions are provided for clarity.
Copy/Paste Cloning in Electronic Health Records
Moving text around in medical records is a widespread practice among physicians and other clinicians. A study conducted in a teaching hospital’s intensive care unit found that at least 20 percent of the progress notes had been copied and pasted in 82 percent of residents’ notes and 74 percent of attending physicians’ notes. These findings of pervasive copying and pasting were consistent with earlier studies.5 “Pulling forward” is a type of copying and pasting. It is generally used to describe copying and pasting within a single patient’s record. In other words, the patient’s prior medical information becomes part of a new record. For example, a physician can pull forward parts of (or an entire) progress note from the patient’s prior examination. Some programs automatically update various aspects of pulled-forward content, such as blood pressure, labs and medications.
Templates in Electronic Health Records
Templates are documentation tools that collect, organize and present clinical data. Many EHR systems are organized around templates for specific types of examinations or for patients of certain ages or with certain conditions. Templates generally use dropdown menus indicating normal or abnormal values or observations. A series of mouse clicks can create paragraphs of text that will appear in printed documents. How templates function “out-of-the-box” and the degree to which they can be customized varies widely.
General EHR Cloning Risk Management Recommendations
Cloning is not inherently bad. However, cloning functions can be difficult to use in a way that improves patient safety, creates accurate and unique patient encounter documentation and complies with Medicare billing laws. Consider the following medical liability risk management recommendations to minimize cloning risks:3,4,5,6,7,8
- Take a proactive approach to developing EHR documentation expertise and policy that defines what is and is not appropriate use of cloning.
- Talk to colleagues, staff, administrators and vendors to determine best practices.
- Use the EHR system to its full capacity.
- Experiment with new components and reject those that do not meet the goals of effective communication and data collection.
- Learn how to customize EHR documentation functions to your practice and workflow.
- Challenge the vendor to address your need to create appropriate patient records, but don’t expect the vendor to know what you need.
- Take as many training classes as possible.
- Give the EHR educators feedback.
- If you did not learn what you expected to learn, let trainers know and request more training on specifics.
- Be realistic about the amount of time and effort it will take to develop EHR expertise.
- Make your records easy to read and review.
- Prioritize aspects of the narrative according to relevance to the next person who may open the record.
- Make it easy for subsequent treating physicians to find the patient’s symptoms and your diagnosis, thought process and treatment plan.
- Reduce the need to scroll excessively. If your notes are structured using SOAP (subjective, objective, assessment, plan), consider using APSO (assessment, plan, subjective, objective).
- SOAP works well for paper charts because subsequent treating physicians can flip the pages to get to the previous physician’s assessment and plan; but in an EHR, subsequent treating physicians need to scroll, which wastes time.
- Create short paragraphs that print out in a font that is large enough to read.
- Strive to develop an EHR-facilitated narrative style that strikes a balance between patient safety, risk management and billing needs.
- Type or dictate patient-specific observations whenever possible.
- Model narrative style on discussions with colleagues (e.g., consider how the patient information you would present during a brief consultation with a colleague could be translated into an EHR note).
- Make writing a narrative as easy as possible. Do not become preoccupied with punctuation, style and sentence structure. (Caveat: Documentation should be spell-checked and not obviously careless.)
- Be involved with the development of EHR documentation standards.
- Develop an ongoing audit/review process to identify “clinical plagiarism” (a provider copying information from another provider and representing it as their own)
- Self-audit by periodically reviewing the printout of a random patient’s encounter note and assessing it from a patient’s, expert witness’, attorney’s, auditor’s or other physician’s point of view.
- Is it easy to understand and evaluate your note?
- Does the note accurately describe what you did for the patient?
- Did the note pull in necessary data from other tabs or screens?
- Did the system insert unnecessary or incorrect generic information (e.g., “alert and oriented to person, place and time” for a newborn patient)?
- Is the treatment medically necessary and documentation clinically relevant?
For many reasons, development of EHR documentation expertise should be considered an ongoing endeavor. Establishing EHR documentation expertise may take a significant amount of time at the beginning, but it can save considerable time in the long run.
More Information About Optimizing Your EHR to Manage Risks
- Closed Claim Case Study: Issues with Identical and Default Text When Using EHR Efficiency Tools
- Closed Claim Case Study: Pasted and Template Text In an EHR Leads to Problematic Medical Records
- Closed Claim CaseStudy: Uncorrected Default Text in an EHR Leads to Defamation Suit
- Closed Claim Case Study: EHR Integration Problems Contribute to Delayed Diagnosis of Lung Cancer
- Closed Claim Case Study: The Problem with EHR Workarounds
- Best Practices: Identify and Remedy EHR Liability Risk Issues: Risk Management Strategies
- Best Practices: EHR Best Practices — Lessons Learned in Litigation
1. Sittig DF, Singh H. “Electronic Health Records and National Patient-Safety Goals.” N Engl J Med 2012; 367:1854-1860. (accessed 10/15/2020).
2. Success EHS. 10 Things to Do After EHR Implementation.
3. Dimick C. “EHRs Prove a Difficult Witness in Court.” Journal of AHIMA. 2010 June 24. (accessed 10/15/2020)
4. AHIMA. “Integrity of the Healthcare Record: Best Practices for EHR Documentation.” Journal of AHIMA. 2013;84(8): 58-62. (accessed 10/15/2020)
5. Bowman S. “Impact of Electronic Health Record Systems on Information Integrity: Quality and Safety Implications.” Perspect Health Inf Manag. 2013 Fall; 10:1c. (accessed 10/15/2020)
6. Cueva JP. “EMR Cloning: A Bad Habit. Convenient Computer Function may Prompt Patient Care concerns, payment denials and legal questions.” Chicago Medical Society News. (accessed 10/15/2020)
7. The Joint Commission. “Sentinel Event Alert 54: Safe Use of Health Information Technology.” 2015 Mar 31. (accessed 10/15/2020)
8. Centers for Medicare & Medicaid Services. Program Integrity Issues in Electronic Health Records: An Overview. June 2016. (accessed 11/3/2020)