1 Medical Malpractice and the Electronic Medical Record
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3 What is Medical Malpractice? Plaintiff must prove, through expert medical testimony: The standard of care That the healthcare provider departed from the standard of care The departure from the standard of care caused some injury
4 Preponderance of the Evidence Burden of Proof What does this mean? More likely than not malpractice committed 51% likelihood malpractice committed Contrasted with Criminal Burden of Proof Beyond a Reasonable Doubt
5 What the Standard of Care Is Care and treatment that a reasonably skilled healthcare provider would provide under the same or similar circumstances Actual care (rather than documentation of care)
6 What Standard of Care Is Not Not Perfect Treatment Medical care executed with skill which is reasonable and customary according to the standards of ordinarily competent healthcare providers performing similar services under like conditions. Not Absence of Mistakes If healthcare providers possess ordinary skill, use ordinary care, and apply their judgment, they are not liable even for mistakes in judgment. Not About Outcome To hold a healthcare provider liable, more than dissatisfaction with the result or a bad outcome of treatment must be shown.
7 What Standard of Care Is Not Continued Not necessarily a record or form entitled Standard of Care Not necessarily protocols or policies
8 What Standard of Care Is Not Continued Not a particular method of care or treatment A physician or healthcare provider is not bound to use any particular method of diagnosis, advice or treatment. If physicians of ordinary skill and learning recognize several methods or procedures as proper, a physician may adopt any of those methods.
9 What Standard of Care Is Not Continued Not what the majority of healthcare providers would do The plaintiff must prove that it is more likely than not that the course of treatment that the physician pursued, or the judgment that the physician exercised, deviated from any courses of conduct recognized and accepted as reasonable by ordinarily competent physicians performing under like conditions. The fact that some other method of diagnosis, advice or treatment existed or that some other physicians might have taken or advised a different method does not by itself establish negligence or improper treatment by the defendant, regardless of the fact that an alternative diagnosis, advice or treatment might have avoided the damage at issue.
10 Two Phase Process 1-2 years Malpractice Cases Phase 1 Medical Malpractice Screening Panel Process Confidential Panel of 3: Quasi-Judge, Lawyer, Healthcare Provider Jury of your Peers? Court / Trial Phase 2 Not Confidential Jury of Community Members Jury of your peers?
11 STATE OF MAINE CUMBERLAND, ss. SUPERIOR COURT CIVIL ACTION DOCKET No. CV-2013-### SLEEPING BEAUTY, ) ) Claimant ) ) v. ) SCREENING PANEL DECREE ) SANDMAN, M.D. ) ) Respondent ) After completion of the evidence, the panel makes the following findings: A. Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the healthcare practitioner or health provider charged with that care: YES YES YES NO NO NO B. Whether the acts or omissions complained of proximately caused the injury complained: YES YES YES NO NO NO C. If negligence on the part of the healthcare practitioner or healthcare provider is found, whether any negligence on the part of the patient was equal to or greater than the negligence on the part of the practitioner or provider: YES YES YES DATED: Panelist, Healthcare Provider NO NO NO Panel Chair Panelist, Attorney
12 Good News Claims down 40% over past 10 years Unanimous findings at panel in favor of providers about 80% of the time Unanimous findings in favor of provider can be used at trial Many cases with unanimous findings go away (80%) Bad News Even if unanimous in favor of healthcare provider, case may still be brought in Court Unanimous findings in favor of Claimant can be used at trial Good News When cases proceed to trial, healthcare providers win about 80% of the time
13 EMR Can Trigger Malpractice Claims Claimant s attorney obtains printed EMR to evaluate case Quality of patient care will be judged by printed EMR Perceptions and/or misperceptions from printed EMR can be decisive If printed EMR does not show evidence of thought process and exercise of judgment
14 How EMR Helps? How EMR Hurts? Produces a clear and highly visual record Produces a clear and highly visual record Easier for panel members and jurors to understand and remember Easier for panel members and jurors to understand and remember Increases available documentation with which to defend a claim Increases available documentation with which to prosecute a claim Standardized documentation using templates Standardized documentation using templates Audit trail / digital footprint Audit trail / digital footprint
15 Risks of EMR/EHR in the Anesthesia Care Setting Missing data / over reliance on EMR Case Example: 7 hour neurosurgery with 93 minute absence of incoming real time data. IT notified but manual data not entered. Claimant attorney used as evidence that standard of care not met by anesthesiologist. ( If it isn t in the EMR, it didn t happen. ) Transfer of Care Case Example: CRNA relieved by another CRNA 2 hours into 7 hour surgery. Change in provider not documented. Plaintiff attorney suggested first CRNA was in surgery too long which led to intraoperative complications.
16 Risks of EMR/EHR in the Anesthesia Care Setting Continued Auto-populate / carry forward fields Case Example: Preoperative anesthesia note auto-populated with volumes of clinically irrelevant information from EMR. Anesthesiologist spent more time scrolling through extraneous documentation than speaking with patient. Metadata / audit trail Case Example: Metadata revealed that anesthesiologist wrote postoperative notes minutes after surgery began. Because of various discrepancies, anesthesiologist settled the case.
17 Risks of EMR/EHR in the Anesthesia Care Setting Continued System assisted documentation Case Example: Physician did exam from doorway using ipad. Examination took less than one minute. Visit was recorded as comprehensive assessment in EMR. Overuse of templates / lack of narrative text Case Example: Anesthesia care is the clinical setting in which the most physiologic and pharmacologic data is collected minute to minute. This information, however, is difficult for lay people to absorb. Records must tell a story. Narrative text, also called free text, should be entered, even briefly, whenever possible.
20 Benefits of EMR/EHR in the Anesthesia Care Setting EHR allows access to much clinical information that otherwise may not be available In preanesthesia setting, EHR allows anesthesiologists to spend more time in face to face discussions with patient, develop trust relationship with patient in a stressful environment, and have a thoughtful discussion of the anesthetic plan and options In preanesthesia setting, EHR helps to alleviate patient anxiety when physician has prior knowledge of patient s history during initial encounter
21 Benefits of EMR/EHR in the Anesthesia Care Setting Continued More legible record
22 Benefits of EMR/EHR in the Anesthesia Care Setting Continued In intraoperative setting, compilation of abundance of physiologic and pharmacologic data to assist in making immediate anesthesia management decisions Ready access to physiologic trends and metrics Allows anesthesiology care providers to reliably create an accurate record at all times, regardless of concurrent demands on the provider
23 Benefits of EMR/EHR in the Anesthesia Care Setting Continued Seamless recording of data in real time during clinically sensitive times such as induction, emergence, resuscitation and stabilization when providers must be focused on patient care During times of clinical instability, requirements for patient care often prohibit the manual transcription of data
24 Minimizing Malpractice Risk Through the EMR No magic bullet in using the EMR to avoid malpractice Be clear Allow the record to tell a story Demonstrate thought processes and judgment
25 You have to accept whatever comes, and the only important thing is that you meet it with the best you have to give. Eleanor Roosevelt
26 On behalf of Verrill Dana, we thank you for attending our presentation. Medical Malpractice and the Electronic Medical Record Karen Frink Wolf, Esquire Mark V. Kenny, Esquire Riikka E. Morrill, Esquire Marie F. Hart, Litigation Paralegal Cynthia I. Bridgham, RN, Paralegal
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