Recent Case Law and the Electronic Medical Record

In 2005, President George W. Bush mandated the use of the electronic medical record (EMR) causing nearly every health care facility to convert from paper records to the EMR.  Two recent (2011) court decisions may impact the standard of care and provide some guidance on how to handle EMR litigation.

Embedded Warnings

Many EMR systems have pop up warnings embedded in the system to alert providers of potential dangers to the patient such as medication interactions, warnings about allergies, and medication errors.  These pop ups require the clinician to override the warning to proceed with the order or change the order based on the warning.  In Kolozsvari[1], Christine Kolozsvaris was prescribed a medication (Colon prep) prior to a procedure (colonoscopy).  When filled by the pharmacist, a warning appeared regarding the safety of Christine’s use of the medication and potential side effects of renal failure due to drug interactions and her age.  The pharmacist prescribed the medication anyway and did not warn Christine of the potential side effects or drug interactions.[2]

Christine developed numbness and tingling and the procedure was postponed for a day and the medication prescribed again.  She returned to the same pharmacy to have it refilled.  This time the warning noted that the prescribed dose would exceed the amount ordinarily considered safe in such a short period of time thereby increasing the risk of renal failure.  Christine also relayed her numbness and tingling to the pharmacy tech who relayed the information to the pharmacist. Christine was advised by the pharmacist that it was not due to the medication, prescribed the medication again and was not warned of the possibility of renal failure that the EMR was warning could occur.[3]

The pharmacist failed to identify that the numbness could have been from the use of the prescribed medication causing an electrolyte imbalance, which in turn causes loss of sensation in the limbs.  Furthermore, she failed to question the prescribing physician regarding the order, the patient’s symptoms, and the warning in the EMR.  This error caused Christine’s symptoms to deteriorate after taking the second dose of the medication.

Christine presented to the ER and was diagnosed with kidney failure due to phosphate nephropathy, and admitted for further treatment.  Subsequently, she was required to use a self-administrated dialysis each night to clear her blood of toxins.  This required a permanent placement of a catheter leading to increased risk of peritonitis which she suffered from twice requiring hospitalization.  The damage done to her kidneys required her to undergo dialysis for the rest of her life or receive a kidney transplant.[4]

Surprisingly, the Trial Court determined there was no duty to warn of the side effects of prescribed medications or refuse to fill the prescription and granted summary judgment against Christine.  The Appellate Court reversed and held that

a pharmacist has a duty to warn or withhold medication and was negligent in failing to warn about the possibility of serious side effects associated with her use of the medication due to her age, the amount prescribed, and her prescription history.[5]

It seems fairly obvious to me that the patient should be warned about potentially serious side effects and the symptoms to watch for when being prescribed medication. The pharmacist has a duty to the patient when filling a prescription just as a physician does when prescribing.  This would extend to the duty to warn of potentially serious side effects as prompted by the warning appearing in the EMR.  When I get a prescription from the pharmacy, I always receive a print out of potential side effects of the medication. Why should this not extend to side effects such as those in Kolozsvari?  It would appear the Appellate Court got it right in the end.

Physician-Patient Privilege

One of the goals of the EMR was to make the chart more accessible to physicians thus allowing them access to the entire patient record.  In Ortega[6] a 2011 Colorado Supreme Court case, Mr. Ortega tried to assert the physician-patient privilege with regard to his EMR in an attempt to prevent the defense from reviewing his prior medical record that spanned a ten year period prior to the alleged malpractice incident underlying the current case.[7]

“The Colorado Supreme Court held the physician-patient privilege did not apply when the physician treating the patient had access to the entire medical record while treating the patient thereby allowing the defense to review the entire record to prepare their defense.

Since Permanente utilized EMR since 1998, and since the physician treating Mr. Ortega had access to these records, the court allowed the defense to review the entire medical record, including the records spanning the ten year period prior to the incident in the current case.[8]

Conclusion

These are only two examples of numerous court decisions that have been determined in the past few years.  It would seem that the EMR, while meant to be a tool of efficiency with the ability to avoid poor patient outcomes, is not being fully utilized by practitioners.  Poor patient outcomes still occur because providers are ignoring the embedded warnings and overriding them while at the same time not notifying the patients of the potentially serious side effects.

It was interesting to note the court decision allowing review of the entire medical record to include prior history unrelated to the current issue resulting in the malpractice claim simply based on the physician’s access to it.  I do understand the court’s decision based on the issue of litigation and again feel they got that decision right in denying the physician-patient privilege in this case.

If a patient is going to sue a physician or clinician, the entire record that is available to the physician at the time of treatment should be examined to determine the relevance of the medical history with regards to the current claim of malpractice.

Another issue I see going forward in working with EMR’s from the perspective of a medical legal consultant is the way the hard copy is provided to the attorney.  The way they are currently presented is typically very difficult to follow.  This requires a trained eye to be able to sift through the fluff and get to the core of the problem.  Documentation is usually sectioned off by providers, nurses, therapy and other ancillary staff making it difficult to tell what was done at what time and by whom. Usually, things are out of order of date and time and sometimes it feels like the chart was thrown down a flight of stairs, put back together, and then given to the attorney.  Chronologies are a very helpful tool to condense thousands of pages into an easy to read report that establishes a timeline of events and what actually happened.

This is where a medical legal consultant can be a valuable asset.  We can help sort out what the crucial facts are in the case and tell you exactly who did what and when.  We can tell you what facts are at issue, if any, and help determine if you have a case before you waste time and money taking on a case only to later pay an expert a high fee to tell you there is no case.  We can also assist in expert witness location and help you determine what type of expert is needed for your case.

If you are having issues dealing with EMRs and need assistance organizing and deciphering what is going on, Med Legal Pro is your solution!

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Tracy Liberatore JD, PA

 

[1] Kolozsvari v. Doe, 943 N.E.2d 823 (Ind. Ct. App. 2011)

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Ortega v. Colorado Permanente Medical Group, 265 P.3d 444 (Colo. 2011)

[7] Id.

[8] Id.