CorrectCare

Going to Court With an EHR

by Joseph E. Paris, PhD, MD, CCHP-A

During 24 years of practicing correctional medicine in prisons and jails, I have been requested to render an expert opinion for the defense or the plaintiff in about 130 cases of correctional litigation. (Some of these were discussed in my article “Why Did the Inmate Sue Us? A Multiple Case Review” in the July 2008 issue of the Journal of Correctional Health Care.)

In about a dozen of the cases, electronic health records were in use, and as an expert witness I received a printout. These printouts pose unique demands as a tool for the practitioners to document their work in court and for the expert witness to assist with the case. To my knowledge, there are no articles in the correctional health care literature dealing with EHR in litigation. The topic is complicated by the existence of a myriad of different EHR systems, some commercially available, others developed in-house.

In court, each EHR system may present unique challenges. While a well-constructed EHR may be a flexible tool when used in a computer as intended, computers have not been used in court. Instead, for legal purposes, such as filings, depositions or court testimony, one has to print the entire EHR contents.

Once printed, a given EHR may not look tidy or well laid out and may be quite unwieldy. Furthermore, each page looks similar to all others, giving the printout a monotonous look that precludes rapid identification of key areas. After printing, search functions are inoperable so searches need to be conducted page by page. As a rule of the thumb, an EHR-based, printed record will take twice as long to review as a similar paper-based record of the same events. The EHR, however, would be more legible.

In many institutions a dual-record issue may arise. If EHR and paper archives coexist (as is usually the case), only the combination of the two would constitute a complete health record. The paper record may include consultations; ER and hospital records; certain lab and X-ray reports; inmate consents and refusals; inmate health care requests; inmate receipts for medical appliances, medications and glasses; and similar documents. In some systems, the medication administration record (MAR) may be paper-based. Sometimes the paper-generated documents are scanned and electronically attached to the EHR. These are not usually searchable as part of the database but can be read on computer if they are properly indexed and the reader is alerted about their existence by tabs or flags.

Four Cases
During my expert witness experience with EHRs, I encountered numerous unusual situations. Four of them will be shared here for the benefit of the readers.

Case 1. Did the jail doctor see the consultant’s report?
A middle-aged jail inmate saw a consultant for ongoing cardiac problems. The outside cardiologist recommended cardiac catheterization. His consultation report reached the jail medical unit, was scanned into the inmate’s EHR and discarded. Although the jail doctor probably had seen the consultation report, the EHR had no mechanism to document who had read the consultation attachment, and when. The inmate catheterization was not performed, and he suffered a heart attack. During mediation, it was not possible to convince the parties that the jail doctor had seen the document, and a substantial settlement was agreed upon.

Case 2. Why were all of the boxes in the review of systems checked ‘NO’?
A prison inmate sued the doctor for failure to effect early diagnosis of pulmonary TB, resulting in more advanced disease, prolonged hospitalization and thoracotomy. Printed EHR review revealed that in the year preceding the diagnosis, the inmate had been seen the doctor 17 times for sporadic sick call visits and chronic care pulmonary clinic visits for his COPD.

The prison had developed elaborate review-of-systems screens that required the practitioner to check “YES” or “NO” to a set of 23 questions for sick call and 27 questions for the COPD clinic. The doctor was supposed to ask these questions at each visit, and no other data could be entered until all of the boxes were checked. Practitioners at the prison quickly became blasé about the questions and stopped asking them, checking all the boxes as “NO” instead. The few positive patient statements at each encounter were keyboarded in a section labeled “Comments.”

During deposition, the doctor stated that the patient had never complained of cough or related symptoms, offering the negatively checked boxes as proof. However, the plaintiff attorney found several instances where boxes were checked negatively for symptoms such as headaches, aches and pains but the doctor had keyboarded these symptoms as present under “Comments.” The doctor admitted that he routinely checked all the boxes negatively “to get it over with and to go on with the meaningful part of the visit.” His documentation credibility was shot, and his attorney negotiated a settlement.

Case 3. Did the inmate get his glaucoma eyedrops consistently?
A long-term jail inmate had severe glaucoma and depended on daily eyedrops for control, which he kept on person and self-administered. The jail had switched to an EHR recently but the system had no provision for electronic storage of inmate signatures indicating acceptance of a medication, nor could physicians and nurses monitor regular eyedrop delivery via EHR review. The inmate was forced to rely on the grievance system whenever his supply was exhausted. He could not grieve in advance. Therefore, after finishing an eyedrop supply he would grieve and receive an answer in two to three days. A refill took another day or two.

After a year with five eyedrop administration interruptions lasting up to five days each, he sued, contending that his vision in one eye had deteriorated from 20/40 to 20/100 and blaming the decline on the treatment interruptions. During depositions, the jail health services administrator admitted that the facility had no mechanism to monitor timely issuance of medication refills to inmates under the keep-on-person system. Attorneys for the jail settled the case with a payout to the inmate.

Case 4. Did the prison doctors read the progress notes?
A state DOC inmate over 50 years of age first learned of his diabetes when he presented with obtundation due to diabetic ketoacidosis requiring a long hospital admission. He sued for failure to timely diagnose his condition and prevent the development of DKA.

This inmate was a frequent user of the prison health care system. He came to sick call clinic with varying complaints and was seen by doctors, nurses or midlevel practitioners. Over the course of eight months he had developed subtle signs and symptoms of diabetes, such as increased urination, visual changes, lightheadedness, thirst and toe paresthesias. During the visits, he would focus on one or two symptoms and requests for special shoewear, bedding, soaps, creams, change in work assignments and the like.

Three practitioners (two doctors and a physician’s assistant) and four nurses alternated as caregivers. Each keyboarded presenting complaints and care plans but seldom read previous EHR notes entered by other providers or themselves. Like many EHR systems in use, the only way to access previous entries was to display a log of encounters. The log would show dates and names of the providers involved, plus a notation of whether the encounter had been regularly scheduled sick call, urgent/emergent sick call, chronic care visit or other. The treating practitioner had no way to discern from these long lists which encounters had been trivial and which had provided significant information.

During deposition, the practitioners and nurses were confronted with the fact that not a single EHR note mentioned findings or conclusions from previous visits. The doctors, the PA and the nurses admitted that seldom, if ever, were previous notes a factor in learning the progression of disease over time. After costly proceedings including depositions from the doctors, the PA and the nurses, the case was settled with a payout to the inmate.

Conclusions
 When considering the conversion to an EHR, it is essential that risk management be included as one of the major factors influencing EHR architecture, layout and proposed workflow. The ever-present possibility that EHR printouts may have to be used in court must be considered.

• The handling of ancillary documents such as consultations; ER and hospital records; lab and X-ray reports; inmate consents and refusals; inmate health care requests; receipts for medical appliances, medications, glasses, etc.; and similar documents must be carefully crafted so they are retrievable and accessible to the providers in real time.

• If a dual system (EHR plus paper) is to be used, both records should be present at every encounter.

• System administrators must balance the perceived need to add numerous questions to every encounter screen with the reality that repetitious, unwieldy strings of questions may be skipped by the providers.

• The architecture, workflow implications and implementation of electronic MAR for both directly observed therapy and keep-on-person medications should be carefully thought out.

— About the author: Joseph E. Paris, PhD, MD, CCHP-A, is an independent consultant in correctional health care based in Marietta, GA. He also works as a physician at the DeKalb County Jail and the DeKalb County Public Health Department, both in Atlanta.

[This article first appeared in the Summer 2009 issue of CorrectCare.]