For The Defense, July 2010 - DRI Today

in the hospital’s electronic health record.Interestingly, the court in the Johnson casesuggested that what the average reasonableperson would conclude was the standardof care for clinical documentation practicesmay have shifted between 1997 and2003 given the then increasing supportand reliance on health-care informationtechnologyin the medical field.The health care industry has progressedmuch farther down the information technologytrack in 2010. This is in large partdue to the economic incentives in the stimulusfunds and exemptions to the Stark Law,which governs Medicare and Medicaid physicianself- referrals. State and federal mandatesmay increasingly prompt informationtechnology reliance, as may economic penaltiesimposed on providers, scheduled tobegin in 2015, for not meaningfully usingEHR systems or other forms of health-careinformation- technologies. Once the mandatedeadlines have come and gone, by theend of this decade, or if most health careproviders and institutions have voluntarilyadopted EHRs for clinical documentation,then failing to use the documentation technologycould conceivably be offered as evidenceof a deviation from the standards ofcare for clinical documentation.It seems the standards of care for clinicaldocumentation may have come full circlesince the Johnson case. In 1997, an averageperson may have found that the standardsof care for clinical documentation requireddocumentation in a paper as opposed toelectronic form. In 2003, the court in Johnsonnoted that due to the emerging use ofEHRs the standard perhaps had shiftedtoward considering computer-based documentationas an equivalent substitute forpaper charting. In 2010, given the advancesin health-care information- technology andgeneral reliance on it in the industry, wecertainly are approaching the other end ofthe spectrum, where electronic documentationmay be seen as most crucial.Once we do reach that point, it seemslogical that a liability inquiry will turnto how information technology has beenused by clinicians and whether that useitself comports with the standard of carefor maintaining and using medical records.Although actual case law may not exist onthese nitty- gritty, technical- clinical issuesat present, a great deal of ink has been spenton the risk management and health informationmanagement to describe the dangersof using templates, or copying andpasting information into an her system,providers sharing logins, providers modifyingor deleting electronic entries afterthe fact of treatment, and other user- relatedissues. For the most part, juries may end updeciding what sorts of EHR practices constitutereasonable, clinical standards ofcare for clinical documentation.The EHR as the Clinical“Source of Truth”Health care institutions do not operate inan entirely paper or electronic existence.Inevitable paper processes still persist inevery hospital system in the country. Mosthealth care institutions employ a hybridmodel in which both electronic and paperprocesses coexist. Making sure that healthcare providers query the correct electronicand paper sources to locate all necessaryclinical information certainly is challenging.Unfortunately, health care institutionsoften have and maintain more than twoconcurrent sources of medical information.Both systemic and user-based challengesmay prevent a clinician from accessing therelevant patient data when needed.System ErrorIf choosing an EHR software from the hundredsof vendors, which may or may notcomply with the various legal obligationsplaced on a provider, is itself a liability concern,then imagine a modern health careinstitution that maintains several EHR systems.For example, an Emergency Departmentmay have a unique system, Labor& Delivery another, and Radiology yetanother. Given the multiplicity of systems,it may take a great deal of technical effortto ensure that medical data in an electronicchart provides a uniform, “source oftruth” about a patient that all practitionerscan rely on in life or death medical situations.When technical means cannot cen-For The Defense n July 2010 n 41