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Presentation on theme: "EMR AND MEDICAL LEGAL ISSUES Grandview Medical Center BRANT POLING PATRICK SMITH."— Presentation transcript:


2 Introduction Education 1990 B.A.Capital University 1994 J.D. Capital University Awards 2015 Ohio Super Lawyers Education 1976 B.A. University of Notre Dame 1979 J.D.University of Cincinnati Awards 2015 Ohio Super Lawyers Brant Poling, Esq.Patrick Smith, Esq.

3 Pre-Test Question # 1 What is the most common mistake practitioners make when preparing a patient’s EMRs that expose them to liability in a medical malpractice lawsuit? 1. Writing too much information about the patient, family history, diagnosis, etc. 2. Writing too little information about the patient, family history, diagnosis, etc. * 3. Forgetting to edit/review EMR entries 4. Writing too much irrelevant information about the patient

4 Pretest Question #2 Which of the following EMR entries is the best description of a patient’s sleep problems? 1.Patient complains of not being able to fall asleep and stay asleep. 2.Patient has not been able to sleep in the past 24 hours. 3.Patient complains of not being able to fall asleep, has not slept in the past 24 hours, has trouble staying asleep, and describes feeling anxious and depressed. * 4.Patient has major sleep issues, likely due to anxiety and depression.

5 Essential Elements of a Medical Malpractice Claim In order to succeed in a medical negligence claim, the Plaintiff must prove the three elements of the claim; I. Plaintiff must prove that the healthcare professional failed to meet professional standards II. The Plaintiff must demonstrate that he or she suffered actual injury III. The Plaintiff must prove that that injury was caused by the healthcare professional’s failure to meet professional standards

6 Burden of Proof  Plaintiff bears the burden of proof  Plaintiff must use expert witness testimony to meet that burden  Defense will counter the testimony of the Plaintiff’s expert witness(es) with their own expert witness(es)

7 Standard of Care What is the standard of care?  It’s whatever care a physician of ordinary skill, practicing within the same specialty and community as the defendant, would be expected to give to a similarly situated patient. Who proves what the standard of care is?  expert witnesses What about medical literature?  It’s not relevant unless an expert witness says it is.

8 Causation  It’s not enough for the Plaintiff to prove a defendant breached the standard of care.  The Plaintiff must also prove that that breach actually and proximately caused the alleged injury.  Actual cause is what actually caused the injury (for example, the actual cause of a patient’s foot drop is injury to the sciatic nerve)  Proximate cause is the legal cause (for example, the proximate cause of the patient’s foot drop was the physician’s negligence)

9 Damages What are damages?  Economic  medical bills, lost wages, funeral costs, etc.  Non-Economic  pain and suffering, loss of consortium, etc.  Punitive  Don’t represent any actual injury or loss suffered by the Plaintiff. The only intended purpose of these awards is to punish a defendant for malice or extreme recklessness.

10 If you don’t record it….it didn’t happen! Documentation through EMR

11 Importance of Medical Records  Medical Record: Best Friend v. Worst Enemy Plan Patient’s Care Communication for the Health Care Team Provides Continuity Financial Reimbursement Used to Assess the Quality of Patient Care Mandated to Maintain Accreditation Status

12 Importance of Medical Records Creates a Credible Witness in the Courtroom

13 Importance of Medical Records  The Record Should Pain the Clinical Picture and Thought Process

14 Importance of EMRs Electronic Medical Records may provide a more accurate record than written charts because it eliminates errors and confusion due to legibility

15 Importance of EMRs

16 Adverse Consequences to be Aware of When using EMRs  New risks for malpractice  Data loss or destruction  Inappropriate corrections to the medical record  Inaccurate data entry  Unauthorized access/ cyber data breach  Errors related to problems that arise during the transition to EMRs

17 How to Prevent the Adverse Consequences – EMR Essential Charting Tips: Use Objective Language  Objective: Not able to return demonstrate self BGM, no blood sugar diary  Subjective: Patient is noncompliant  Objective: Plan – recommended follow up in one month  Subjective: Instructions given Example 1Example 2

18 EMR Essential Charting Tips: Use Objective Language  Objective: Patient ate half of hamburger and half of bun  Subjective: Diet taken fairly  Objective: Dr. Smith paged 3x, no response  Subjective: Dr. Smith paged 3x, refused to see patient Example 3Example 4

19 EMR Essential Charting Tips: Use Objective Language Actual Sentences Found in Patient’s Hospital Charts: (What NOT to do!)  Patient has Two Teenage Children, but No Other Abnormalities.  Discharge Status: Alive but Without My Permission.  Occasional, Constant, Infrequent Headaches.  She is numb from her toes down.

20 EMR Essential Charting Tips: Provide a Thorough Record  Young woman presents to clinic for gestational diabetes follow up. She has been doing well but blood sugar results are still bad. The patient will be following up.  3/22/07 3:50 p.m. 27 yr. old woman presents to the clinic for follow up of gestational diabetes. Husband is present. Patient states she is following BGM recommendations and eating carbohydrates within recommendations, but 20% or more of BG are greater than target. Primary Care Physician, Dr. Bond notified of elevated glucose concerns via fax including Education Record and BGM diary to 614-000-0000. Receipt confirmed by Maureen. Patient understands need to follow up with Dr. Bond this week. Poor Documentation Good Documentation

21 How EMR’s Are Relevant in a Medical Malpractice Lawsuit – Example OBGYN Case Plaintiff’s Allegations:  Failure to timely identify and treat preeclampsia/eclampsia  Failure to timely identify and treat fetal distress during the labor process  Failure to utilize the chain of command to pursue physician intervention  Failure to recognize arrest of labor  Failure to effectuate a prompt cesarean section

22 How EMRs Are Relevant in a Medical Malpractice Lawsuit: Example OBGYN Case  Relevant Records in the Lawsuit: 1. Prenatal Records 2. L&D Records 3. Fetal Monitor Strips 4. Newborn Records – DC Order 5. Transfer Records 6. Hospital Policies and Protocols 7. Midwife/OB Standard Care Arrangements 8. Re-cuts of Placenta and/or autopsy slides 9. All Radiologic studies 10. Subsequent health care records of the child 11. All other records for the child (school camps, etc) 12. Records of prior deliveries (stillbirths or viable births) 13. Records of prior pregnancies (miscarriages or D&C) 14. Records of post delivery pregnancies 15. ACOG, AWON, etc policy statements or guidelines 16. Your website

23 How EMRs Are Relevant in a Medical Malpractice Lawsuit – Example OBGYN Case Failure to Document the Following will Fuel the Lawsuit: 1. Date & Time of Admission 2. Date & Time of ROM 3. EDC By LMP or By US 4. Frequency of Vital Signs & Temp 5. Onset of Contractions & Active Labor 6. Maternal Sensation and Palpable Fetal Movements-Scalp STIM-Kick Counts 7. Names of Provider Rendering Care 8. Notification & Telephone Calls with Physicians 9. Complete & Onset of Pushing 10. Fetal Station 11. Time of Application of Vacuum; # of pulls 12. Providers in Attendance at delivery & Time NICU Team Called 13. Provider Assigning APGAR Scores 14. Response to Decelerations – Fluids, positioning, O2, MD notification 15. Documentation on FMS v. clinical flowsheets

24 Learn From Others’ Mistakes  Some examples of cases we have litigated where the cause of action was either based on or fueled by a physician’s mistakes made in preparing EMRs:


26 Poling Law 300 E. Broad Street Suite 350 Columbus, Ohio 43215 Phone: 614-737-2900 THANK YOU Brant Poling, Esq. Patrick Smith, Esq.


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