Curbside Consult with Dr. Jayne 7/10/23
In my past life, I did a fair amount of medicolegal consulting. Although I don’t regularly work in that space anymore, I’m mentoring a young clinical informaticist that finds himself thrown into that space without much warning. When you’re a front-line physician, you know that there is always a chance that a patient complication or a poor outcome could lead to a legal claim. Even when you’re not primarily responsible for the situation, if you’ve participated in the care of a patient, you might be contacted to serve as a fact witness. Regardless of the situation, depositions can be nerve wracking. No matter the industry you work in, generally people don’t really look forward to being dragged into a legal situation. Most informaticists don’t expect to be drawn into legal issues, but when complex systems are involved in documenting the care that was rendered, it’s becoming increasingly more common.
In the past, fulfilling legal requests meant that the health information management department would pull hundreds of pages of paper records and photocopy them to send to the requesting attorney. When we started transitioning to EHRs, sometimes the records requests were fulfilled in a hybrid manner depending on where the hospital was in its EHR journey. There might have been a mix of documents, with some being photocopied and others being printed from the EHR. When I first started seeing these kinds of records, it amazed me how different the EHR output was from different hospitals. Some had better formatted notes than others; others were sometimes downright confusing. The transition of electronic flowsheets to paper output is particularly problematic at times, and when I used to work legal cases regularly, I’d sometimes have to put all the paper representations of formerly electronic flowsheets across the living room floor to try to make sense of them.
Now that the majority of care delivery sites are fully documented using electronic records, the size of documentation on a per-note basis has grown dramatically. Hospital daily progress notes that typically would have been a page or a page and a half in the paper world are now three to five pages long. Despite efforts to the contrary, they often exemplify the concept of “note bloat” with lots of copy and paste and more carry-forward documentation than most of us want. Even a short hospital stay, when converted from an EHR chart to a paper record, can generate thousands of pages of records. Wading through them can be challenging, even when you’re experienced in looking at EHR output. Lately, I’ve seen some notes from hospitals that are exposing metadata within the notes themselves. For example, tagging every sentence with its author in a superscript, or tagging sentences to identify whether the content was generated from a template or through manual entry.
My young colleague has been working in clinical informatics for a couple of years, but mostly spending his time as a super user and helping support his specialty colleagues at the point of care. He only recently started getting into more strategic areas of EHR management. He served on a couple of EHR committees, one of which was depicted last year in a glowing article in the health system’s public-facing newsletter. That particular article was about work that the informatics team had been doing to revisit procedure documentation in a particular specialty area as part of a preventable harms project. It was intended as a feel-good piece, describing how the hospital was using information systems to promote patient safety. Various people were quoted in the article, including my friend, who talked about how the committee was reviewing procedure note templates and order sets to ensure they were being kept up with current evidence and represented the highest standards of care.
Unfortunately, the quotation in the article also ended up tagging my colleague as a potential expert in how the hospital decided to redo its clinical content. Apparently, there was a potential legal claim after a procedure that resulted in a poor outcome, and there’s a hypothesis that an outdated order set contributed to the situation. Since the article appeared on the hospital’s website, it’s easily found in an Internet search, leading to a request for deposition from some enterprising attorneys. He’s now second-guessing the EHR Quality Committee’s strategy in deciding which documentation pathways to review now versus those that were marked for later analysis. Like all of us, his organization was struggling with the idea of having so much to do and so little time, so hard decisions had to be made.
In learning more about the case, it’s not clear how much influence the EHR really had on the situation, even if its documentation was outdated. Ultimately the clinician at the bedside is responsible for placing the right orders for the right patient and for ensuring that they meet the standard of care. Unfortunately, many of us have become so dependent on the EHR as our mechanism for ensuring we’re ordering what we should be ordering. I’ve seen plenty of physicians who have let their critical thinking skills slide and who don’t question what they’re seeing even when they know it’s not right. They’ve come to rely on the prompts and reminders given by the EHR, sometimes to the detriment of the patient when the EHR either doesn’t have any care pathways for a particular situation or when there’s a technology outage.
Plenty of us are speculating as to how artificial intelligence can help us be better doctors – whether it be through helping us write notes that make more sense than what humans are currently generating or whether we’re using it to suggest alternative diagnoses or treatments that might not be top of mind. However, such technology is only going to take us further down the proverbial rabbit hole of reliance on tech. Some of the most harrowing moments I’ve had in clinical practice have been during an EHR downtime and I don’t wish that experience on anyone. Particularly, I feel for those clinicians who work at hospitals that have been hit by ransomware and who have to resort to downtime procedures for extended periods of time. Technology may be making us dumber, in a way.
In the meantime, I’m helping my colleague through the legal process as much as I can, recommending additional training about how his system presents data and educating him on what it will be like to be deposed. He’s incredibly nervous and he never dreamed that EHR governance was going to be on his mind as much as it is now. No one ever said being a clinical informaticist was dull, but I hope for his sake that the next couple of weeks are fairly boring, including the deposition. Being in his position is certainly something they didn’t teach us about in medical school or residency, and definitely not in clinical informatics training. Fortunately, though, in those educational environments they do teach us critical thinking skills, logic, and the need for ongoing learning, so I hope my friend can use those skills to weather the current storm.
Has your IT department ever been cited as party to a legal action? Was it juicy enough to be the subject of a courtroom drama? Leave a comment or email me.
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