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Letters MEDICOLEGAL—Malpractice and Ethical Issues in Radiology
Electronic Health Records and Malpractice Litigation: Malpractice Pitfalls QUESTION: Two years ago, our hospital installed an electronic health record (EHR) system. A radiologist colleague told me that a defense attorney friend told him that EHR has caused an increase in medical malpractice lawsuits. Is this true? DR. BERLIN’S REPLY: I am not aware of any published data that indicate EHR use has increased the number of medical malpractice lawsuits. However, I am aware of several medical malpractice lawsuits that, although not necessarily caused by EHR systems, will nevertheless be more difficult to defend because of EHR. Clearly, EHR systems currently present several medical malpractice pitfalls about which all physicians, including radiologists, should be aware, including the following: 1. Physicians not infrequently enter data into medical records that contain mistyped words, reversed numbers, inaccurate information, or other data entry mistakes. Once a mistake is entered into an EHR system, it is common for the physician or radiologist to “cut and paste” the same entry over and over again. 2. EHR systems have accelerated the use of templates in radiologic interpretations to increase productivity. Most radiology groups today have created several specific templates for chest cases, musculoskeletal cases, neuroradiology cases, and so on. These could be problematic in certain situations. For example, let us take a patient whose chest radiographs are considered to be within normal range. However, there may be some tortuosity of the aorta, which the radiologist believes is unremarkable considering the patient’s age. Thus, the template for “normal chest” is used. Let us then hypothetically assume that the patient with the tortuous aorta is admitted to the hospital’s emergency department several weeks later and is found to have an aortic dissection and
dies. Retrospective evaluation of the earlier chest radiograph shows obvious tortuosity of the aorta, but the radiologist had issued a normal chest template report. Although the radiologist is not necessarily negligent for having done this, he or she could be embarrassed in front of a jury trying to explain why he or she used a template for a normal chest without even mentioning the aortic finding. If the radiologist says he or she used a template “because I have so many radiologic studies to interpret and the template allows me to issue more interpretations in a given period of time,” the radiologist would not be looked on kindly by a jury. 3. EHR systems document the exact time that a radiologist clicks onto an image and the exact time that the radiologist clicks off the image. Thus, the time that it takes for the radiologist to render an interpretation is recorded to the exact second. Let us imagine that a year after the event, the radiologist is accused of missing a finding on the radiologic study and is sued for malpractice and asked, “How long did you spend in rendering that interpretation?” The radiologist replies from memory, “Maybe 1 or 2 minutes.” Now the opposing attorney responds, “Well, we have the EHR report that shows that you spent exactly 33.5 seconds when rendering this interpretation.” I leave it to your imagination how that looks to a jury. 4. A radiologist is asked by an attorney if he or she has reviewed radiographs interpreted 14 months earlier. The radiologist replies, “No, I never looked at that radiograph again.” The attorney then replies, “Well, doctor, the EHR shows that exactly 2 months ago, you pulled that image up and spent 2 minutes 32 seconds looking at it, and, in fact, just 3 days ago you pulled the image up again
and spent 1 minute 45 seconds looking at it.” The radiologist told a little white lie, but to a jury, the lie may not be considered so “little” or “white.” 5. Although voice recognition of radiologic reporting is not necessarily a function of EHR systems, nonetheless, it is used in conjunction with EHR. Data show that typographic errors are far more common with voice recognition dictation because, in most cases, the radiologist electronically signs off on the report immediately after dictating it. Theoretically, the radiologist rereads the report before signing off on it, but from a practical point of view, radiologists do not reread the report; they “see” what they remember having just dictated, not what is actually displayed on the monitor. 6. An interventional radiologist or radiation oncologist sees a patient for periodic follow-up visits after a diagnostic examination or radiation treatment. At the first follow-up visit, the radiologist enters into the EHR system, “Patient doing well, no complaints.” At the conclusion of each subsequent visit over the next 6 months, the radiologist pastes in the identical entry. Several months later, the patient is diagnosed with a serious complication and later files a malpractice lawsuit against the radiologist. At the ensuing jury trial, the patient testifies that on several of the visits, he told the radiologist he was having pain in the area where the complication later developed, and the radiologist told him it was minor and not important. The radiologist testifies that at no time did the patient have complaints because if he had, the radiologist would have carefully documented it in the entry that he makes at the time of each patient visit. The plaintiff’s attorney asks the defendant-radiologist whether he makes
AJR 2014; 203:W447 0361–803X/14/2034–W447 © American Roentgen Ray Society
AJR:203, October 2014 W447
Downloaded from www.ajronline.org by UCSF LIB & CKM/RSCS MGMT on 12/12/14 from IP address 169.230.243.252. Copyright ARRS. For personal use only; all rights reserved
Medicolegal a new carefully written entry at each visit, and the radiologist replies, “Yes, of course.” The attorney then projects on the courtroom wall an enlargement of each EHR entry. “Doctor,” says the attorney, “it’s obvious that all you did was paste in the same identical entry at every visit because if you now look carefully, you’ll see that you inadvertently typed in two periods at the end of the sentence instead of one period. You
simply ignored whatever the patient complained of, didn’t you?” The jury found in favor of the patient. These are just some of the malpractice pitfalls that are related to EHR systems. Whether they will truly increase the number of malpractice lawsuits remains to be determined, but in any event, radiologists and other physicians should be aware of these pitfalls and attempt to avoid them.
Leonard Berlin NorthShore University HealthSystem, Department of Radiology, Skokie Hospital, Skokie, IL; Professor of Radiology, Rush University and University of Illinois, Chicago, IL ([email protected]) DOI:10.2214/AJR.14.12687 WEB—This is a web exclusive article.
All opinions expressed herein are those of the author and do not necessarily reflect those of the American Journal of Roentgenology or the American Roentgen Ray Society. This monthly column answers common professional liability questions. The legal advice provided herein is intended to be general in nature and in specific circumstances is not a substitute for formal legal opinions obtained from the reader’s personal legal counsel.
F O R YO U R I N F O R M AT I O N
We invite your reply to this Medicolegal Q&A series. Send your questions and comments to the attention of AJR Q&A at [email protected]. The comprehensive and updated book, Malpractice Issues in Radiology, 3rd edition, by Leonard Berlin, is now available! For more information or to purchase a copy, see www.arrs.org.
W448
AJR:203, October 2014
Letters MEDICOLEGAL—Malpractice and Ethical Issues in Radiology
Electronic Health Records and Malpractice Litigation: Malpractice Pitfalls QUESTION: Two years ago, our hospital installed an electronic health record (EHR) system. A radiologist colleague told me that a defense attorney friend told him that EHR has caused an increase in medical malpractice lawsuits. Is this true? DR. BERLIN’S REPLY: I am not aware of any published data that indicate EHR use has increased the number of medical malpractice lawsuits. However, I am aware of several medical malpractice lawsuits that, although not necessarily caused by EHR systems, will nevertheless be more difficult to defend because of EHR. Clearly, EHR systems currently present several medical malpractice pitfalls about which all physicians, including radiologists, should be aware, including the following: 1. Physicians not infrequently enter data into medical records that contain mistyped words, reversed numbers, inaccurate information, or other data entry mistakes. Once a mistake is entered into an EHR system, it is common for the physician or radiologist to “cut and paste” the same entry over and over again. 2. EHR systems have accelerated the use of templates in radiologic interpretations to increase productivity. Most radiology groups today have created several specific templates for chest cases, musculoskeletal cases, neuroradiology cases, and so on. These could be problematic in certain situations. For example, let us take a patient whose chest radiographs are considered to be within normal range. However, there may be some tortuosity of the aorta, which the radiologist believes is unremarkable considering the patient’s age. Thus, the template for “normal chest” is used. Let us then hypothetically assume that the patient with the tortuous aorta is admitted to the hospital’s emergency department several weeks later and is found to have an aortic dissection and
dies. Retrospective evaluation of the earlier chest radiograph shows obvious tortuosity of the aorta, but the radiologist had issued a normal chest template report. Although the radiologist is not necessarily negligent for having done this, he or she could be embarrassed in front of a jury trying to explain why he or she used a template for a normal chest without even mentioning the aortic finding. If the radiologist says he or she used a template “because I have so many radiologic studies to interpret and the template allows me to issue more interpretations in a given period of time,” the radiologist would not be looked on kindly by a jury. 3. EHR systems document the exact time that a radiologist clicks onto an image and the exact time that the radiologist clicks off the image. Thus, the time that it takes for the radiologist to render an interpretation is recorded to the exact second. Let us imagine that a year after the event, the radiologist is accused of missing a finding on the radiologic study and is sued for malpractice and asked, “How long did you spend in rendering that interpretation?” The radiologist replies from memory, “Maybe 1 or 2 minutes.” Now the opposing attorney responds, “Well, we have the EHR report that shows that you spent exactly 33.5 seconds when rendering this interpretation.” I leave it to your imagination how that looks to a jury. 4. A radiologist is asked by an attorney if he or she has reviewed radiographs interpreted 14 months earlier. The radiologist replies, “No, I never looked at that radiograph again.” The attorney then replies, “Well, doctor, the EHR shows that exactly 2 months ago, you pulled that image up and spent 2 minutes 32 seconds looking at it, and, in fact, just 3 days ago you pulled the image up again
and spent 1 minute 45 seconds looking at it.” The radiologist told a little white lie, but to a jury, the lie may not be considered so “little” or “white.” 5. Although voice recognition of radiologic reporting is not necessarily a function of EHR systems, nonetheless, it is used in conjunction with EHR. Data show that typographic errors are far more common with voice recognition dictation because, in most cases, the radiologist electronically signs off on the report immediately after dictating it. Theoretically, the radiologist rereads the report before signing off on it, but from a practical point of view, radiologists do not reread the report; they “see” what they remember having just dictated, not what is actually displayed on the monitor. 6. An interventional radiologist or radiation oncologist sees a patient for periodic follow-up visits after a diagnostic examination or radiation treatment. At the first follow-up visit, the radiologist enters into the EHR system, “Patient doing well, no complaints.” At the conclusion of each subsequent visit over the next 6 months, the radiologist pastes in the identical entry. Several months later, the patient is diagnosed with a serious complication and later files a malpractice lawsuit against the radiologist. At the ensuing jury trial, the patient testifies that on several of the visits, he told the radiologist he was having pain in the area where the complication later developed, and the radiologist told him it was minor and not important. The radiologist testifies that at no time did the patient have complaints because if he had, the radiologist would have carefully documented it in the entry that he makes at the time of each patient visit. The plaintiff’s attorney asks the defendant-radiologist whether he makes
AJR 2014; 203:W447 0361–803X/14/2034–W447 © American Roentgen Ray Society
AJR:203, October 2014 W447
Downloaded from www.ajronline.org by UCSF LIB & CKM/RSCS MGMT on 12/12/14 from IP address 169.230.243.252. Copyright ARRS. For personal use only; all rights reserved
Medicolegal a new carefully written entry at each visit, and the radiologist replies, “Yes, of course.” The attorney then projects on the courtroom wall an enlargement of each EHR entry. “Doctor,” says the attorney, “it’s obvious that all you did was paste in the same identical entry at every visit because if you now look carefully, you’ll see that you inadvertently typed in two periods at the end of the sentence instead of one period. You
simply ignored whatever the patient complained of, didn’t you?” The jury found in favor of the patient. These are just some of the malpractice pitfalls that are related to EHR systems. Whether they will truly increase the number of malpractice lawsuits remains to be determined, but in any event, radiologists and other physicians should be aware of these pitfalls and attempt to avoid them.
Leonard Berlin NorthShore University HealthSystem, Department of Radiology, Skokie Hospital, Skokie, IL; Professor of Radiology, Rush University and University of Illinois, Chicago, IL ([email protected]) DOI:10.2214/AJR.14.12687 WEB—This is a web exclusive article.
All opinions expressed herein are those of the author and do not necessarily reflect those of the American Journal of Roentgenology or the American Roentgen Ray Society. This monthly column answers common professional liability questions. The legal advice provided herein is intended to be general in nature and in specific circumstances is not a substitute for formal legal opinions obtained from the reader’s personal legal counsel.
F O R YO U R I N F O R M AT I O N
We invite your reply to this Medicolegal Q&A series. Send your questions and comments to the attention of AJR Q&A at [email protected]. The comprehensive and updated book, Malpractice Issues in Radiology, 3rd edition, by Leonard Berlin, is now available! For more information or to purchase a copy, see www.arrs.org.
W448
AJR:203, October 2014
