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Electronic Health Records: Patient Care and Ethical and Legal Implications for Nurse Practitioners

Melanie L. Balestra, JD, NP

ABSTRACT

Electronic health records (EHRs), with their adoptio

n incentivized as part of the American Recovery and Reinvestment Act of 2009, are now a ubiquitous part of the health care landscape. Although these systems promised to improve the quality of patient care, increase efficiency, and reduce costs, health care providers are finding that current EHRs instead require time-consuming data entry, can interfere with patient interactions, and cause medical errors. Nurse practitioners should implement practical tips and best practices for navigating and successfully using EHRs, as well as risk management strategies to ensure better patient care and avoid malpractice litigation or licensing issues.

Keywords: best practices, electronic health record, liability, maintaining ethical standards, medical errors, malpractice/disciplinary action, risk management � 2016 Elsevier Inc. All rights reserved.

Melanie L. Balestra, JD, NP works at the Law Offices of Melanie Balestra in Irvine, CA. She can be reached at balestralaw@cox .net. The author has no conflict of interest. This article was submitted on behalf of The American Association of Nurse Attorneys (TAANA).

INTRODUCTION

ealth care innovations have had a signifi- cant impact on patient care, helping people

Hlive longer and with an increased quality

of life. New treatments, therapies, drugs, and di- agnostics are saving lives daily. Take, for example vaccines, which are among the most important medical advances of the 20th century. Since 1900, considerable declines in morbidity have been seen

This CE learning activity is designed to augment the knowledge, skills, and attitudes of

electronic health record use.

At the conclusion of this activity, the participant will be able to: A. Identify 3 benefits of EHR.

B. Discuss 3 problems and/or liability issues with EHR.

C. Evaluate 3 tips/strategies to use in EHR documentation.

The authors, reviewers, editors, and nurse planners all report no financial relationships

The authors do not present any off-label or non-FDA-approved recommendations for t

This activity has been awarded 1.0 Contact Hours of which 0 credit are in the area of P

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in 9 vaccine-preventable diseases, including smallpox, polio, and measles.1 The discovery of antimicrobial drugs was another watershed moment, providing treatment options for bacterial infections.2 Other important advances include surgical anesthetic and antisepsis, as well as improvements in heart surgery, cardiac care, and radiologic imaging.3

More recently, advances in health information technology have avowed to save lives and reduce

nurse practitioners and assist in their understanding potential legal liabilities with

that would pose a conflict of interest.

reatment.

harmacology. The activity is valid for CE credit until March 1, 2019.

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costs. Among these advances is the use of computers to track patient records and manage care, thereby improving health quality by reducing errors. Practice-specific electronic medical records (EMRs) were the first sources used to digitize patient infor- mation, followed by electronic health records (EHRs), to go beyond standard clinical data collected in a provider’s office and include a broader view of a patient’s care.4

An early study reviewing automation of infor- mation showed that patients treated in hospitals that ranked highest in use of health information tech- nology to manage patient records and physician notes were 15% less likely to die compared with patients in lower ranking hospitals.5 EHRs were found to offer the potential to provide medical practice efficiencies and cost savings. Thus, there also was evidence of early success. According to a national survey of doctors who had complied with all phases of the Centers of Medicare & Medicaid Services (CMS) Electronic Health Record Incentive Program, 79% of providers reported that, with an EHR, their practice functioned more efficiently, and 82% reported that sending prescriptions electronically (e-prescribing) saved time.6,7

But now, more than 7 years since the push to include EHRs as part of the American Recovery and Reinvestment Act of 2009, it seems unlikely that these goals will be reached. This was highlighted by the RAND Corporation, which in 2005 predicted that widespread use of EMRs could save $81 billion per year.8 This report was promoted by the technology industry and used by the federal government to advance the stimulus plan to pay for the installation of electronic systems, only to be followed 7 years later by a new analysis from RAND showing that reduced costs with EMRs had not been achieved. According to the follow-up analysis, “the technology’s impact on healthcare efficiency and safety are mixed.”9(p65) The analysis cited that annual health care expenditures in the United States had actually grown by $800 billion.9

In addition to unmet cost savings, EHRs are negatively impacting patient care. RAND researchers interviewed physicians who reported that EHR technology “significantly worsened professional satisfaction in multiple ways.”9(p68) According to the

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report, aspects of current EHRs that were “particularly common sources of dissatisfaction included poor usability, time-consuming data entry, interference with face-to-face patient care, inefficient and less fulfilling work content, inability to exchange health information, and degradation of clinical documentation.”10(p98)

Another study showed that physicians are now devoting more time to data entry than patient con- tact. A study of physicians using EMRs in emergency departments showed that doctors spent an average of 43% of their time on data entry and only 28% of their time on direct patient contact.11

Nurse practitioners (NPs) who routinely use EMRs and EHRs may agree. Rather than supporting patient care, computerized health information sys- tems could create barriers, requiring NPs to act as data entry clerks, thus hindering patient interaction. These systems also could make it difficult to docu- ment a note in the patient record, write a prescrip- tion, or generate a referral.

With that in mind, this article provides a brief history of EMRs and EHRs, as well as a discussion about concerns NPs may have when using these systems, including patient care, privacy, ethics, and liability issues. In addition, it is clear that EMRs and EHRs are here to stay. So, until the promises of current systems are realized, this article will provide NPs with advice for navigating these systems and maintaining ethical standards, as well as risk man- agement strategies and suggestions that NPs should implement to avoid and/or reduce litigation or disciplinary proceedings.

EHRs The roots of current EHR systems go back to the 1960s and 1970s, when academic medical centers developed systems with the idea of compiling patient health information so that it could be centrally managed and shared. Development work also was underway by industry and the federal government, which instituted an EHR in the US Department of Veterans Affairs in the 1970s.12

This was followed by the Institute of Medicine’s analysis of paper health records in 1991 (and with revisions in 1997) advocating for computer-based patient records.13 Then, in 1999, the Institute of

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Medicine published its landmark study of medical errors, To Err is Human: Building a Safer Health System, which stated that health information technology would help reduce medical errors by facilitating transfer of important patient information.14

The most recent development occurred with the federal American Recovery and Reinvestment Act of 2009. This stimulus package allocated $19.2 billion to increase the use of the EHRs by physicians and hospitals under the Health Information Technology for Economic and Clinical Health Act, also known as the HITECH Act. Beginning in 2011, incentive payments were paid to eligible professionals, hospi- tals, and critical access hospitals participating in Medicare and Medicaid programs that adopted and demonstrated “meaningful use” of certified EHR technology (ie, using the technology to improve quality, safety, efficiency, and reduce health dispar- ities; engage patients and family; improve care coordination and population and public health; and maintain privacy and security of patient health information).15

As ofOctober 2015, more than 479,000 health care providers received payment for participating in the Medicare and Medicaid Electronic Health Records Incentive Programs. The CMS published a final rule specifying the criteria that eligible professionals, eligible hospitals, and critical access hospitalsmustmeet to participate in theMedicare andMedicaid Electronic Health Record Incentive Programs in 2015-2017 (Modified Stage 2) and in Stage 3 in 2017 and beyond.16 A key part of this program is the reporting of clinical quality measures that measure and track the quality of health care services provided by eligible professionals, hospitals, and critical access hospitals. To participate in the incentive programs and receive an incentive payment, providers are required to submit clinical quality measures data from certified EHR technology.17

For eligible professionals participating in the incentive program, there are financial penalties for those professionals who do not demonstrate mean- ingful use. Beginning in 2015, eligible professionals who did not successfully demonstrate meaningful use were subject to a payment adjustment starting at 1% and increasing each year the eligible professional does

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not demonstrate meaningful use, to a maximum of 5%.16

In April 2016, CMS proposed a rule that would replace meaningful use for Medicare physicians and establish key parameters for the new Quality Pay- ment Program, a framework that includes the Merit-based Incentive Payment System and Alter- native Payment Models. These policies were estab- lished by the Medicare Access and CHIP Reauthorization Act of 2015. The proposal would consolidate 3 currently disparate Medicare quality programs into the Merit-based Incentive Payment System, including meaningful use of EHRs.18 MIPS will go into effect over a timeline from 2015 through 2021 and beyond.19

ISSUES WITH EHRs AND RISKS FOR NPs Computerized health information systems (both cloud- and server-based) are now used routinely by NPs to document patient information. The systems also often serve as clinical data repositories to be shared by other health care professionals and support billing processes. Unfortunately, these systems can be cumbersome to use, and there are potential patient care and ethical issues, as well as medical liability risks associated with their use, as described in what follows.

Patient Care Eye contact is important to patients when commu- nicating with health care providers. When NPs turn away from a patient to use the EMR or EHR, patients can feel ignored, creating a barrier to communication,20 and potentially interfering with discussions about a patient’s health status, test results, or prescribed medications. This is especially true when dealing with wall-mounted systems that require NPs to turn their back to the patient when entering data.

In addition, the rigorous data entry requirements, often done via difficult-to-navigate user interfaces, can create additional problems. Medication safety is a primary concern, as the categories of prescribing, transcribing, dispensing, and administering can be disjointed, leading to EHR-associated medication administration errors. Difficult-to-use screen and font

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sizes, auto-correct or auto-fill functions, inadequate LED lighting, and a lack of hand-held devices used to bar code scan medications, as well as inefficient and delayed access to laboratory results or a lack of interoperability with other systems, could also lead to incorrect medication names and/or dosing and safety problems.21

Templates, designed for common procedures and consultations, also offer the potential for inaccurate data entry and documentation of testing and/or procedures that may not have been performed. Templates also can distance the recording of data from the visit with the patient.22

Finally, clinical decision-making is based on real- time information, so other patient care issues can arise when NPs have access to only partial or incomplete medical data when dealing with a patient, such as when a system is offline and no back-up is available or patient medical data are contained in a mix of both electronic and paper charts.

Patient Privacy and Security Risks A breach of confidentiality of medical information can occur with paper medical records, but the risk of a breach occurring is greatly elevated with an EMR or EHR system. As a result, NPs must be vigilant in preventing unauthorized access to patient informa- tion, including internal threats from poor password management, disgruntled or disloyal coworkers, transparent physical security measures, and external threats, such as theft of electronic devices containing health information.23,24

In addition, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides data privacy and security provisions for safeguarding med- ical information. The security management process standard is a requirement in theHIPAA Security Rule, and HIPAA privacy and security requirements are embedded in the Medicare and Medicaid Electronic Health Record Incentive Programs through the meaningful use requirements.25 Violations and/or lack of privacy when using an EHR system could result in HIPAA violations.

Liability and Ethical Problems It is a fact that widespread use of EMRs or EHRs may contribute to more errors and malpractice

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liability.26 Some of the risk concerns associated with these systems are similar to those that exist with paper documentation, and some are unique to online patient charting. Legal liability exposure can come from a variety of areas, including:

� Copying and pasting notes. NPs may want to cut and paste (or “clone”) details from a pre- vious exam, patient history, or event between patients, but data could be outdated or inac- curate, diminishing the integrity of the medical record. Vital signs that never change or repeated information in the EHR could be used by a plaintiff attorney in a malpractice case.27

� Use of templates. EMR and EHR systems do not create a template for every disease process or condition. Templates that are narrow in scope or do not allow entry of data or impressions suggesting alternative diagnoses can expose the user to legal liability.28

� Ignoring clinical decision support. The NP may be tempted to ignore the continuous alerts and recommendations that EHRs provide, but sys- tems record time spent reviewing alerts. If that time is limited and something happens to a patient, the NP could be at risk.27

� Late entries and changes. The importance of maintaining the integrity of the EMR or EHR cannot be overstated. It is the legal and medical record, and must meet federal and state regu- lations.29 It can be a challenge for NPs to capture all pertinent information in the electronic record in real time. As a result, amendments and changes to the EMR or EHR can occur. This can serve as double- edged sword for NPs who face the ethical obligation to ensure that the record is com- plete by adding information after the patient visit, knowing full well that post-visit adden- dums, corrections, retractions, deletions, or other late entries to the electronic record can expose them to liability and/or Board of Nursing issues.

� Failure to document or incomplete/inaccurate documentation. Regardless of a paper or elec- tronic system, failure to document or incom- plete/inaccurate documentation in the patient record could lead to patient injury and

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malpractice litigation and/or licensing issues from the Board of Nursing. This could range from failure to transfer all information from the paper chart to EMR or EHR, failure of the NP to sign his/her notes, or checking boxes indi- cating that services were performed without providing supporting documentation. Auto-fill functions also can create problems by inaccu- rately completing fields. The same applies to dictation errors. Failure to check could cast doubt on the quality of care provided and the accuracy of the entire EHR.27 Drop-down boxes used for documentation also can be incomplete or limit the ability to chart information.

TIPS FOR NAVIGATING AN EHR Regardless of liabilities associated with EMR or EHR use, the technology is not going away. NPs should consider the following recommendations to prevent adverse events when using these systems and to help protect themselves from malpractice and Board of Nursing/license issues. Recommenda- tions include:

� Complete basic training in the system in use at your practice or hospital and participate in all training updates. This is important if you work as an independent contractor practitioner at several practices or hospital locations and each use different platforms.

� Request written basics for use of the system, including how to order a lab test, submit e-prescriptions, and order referrals. Consider preparing an outline to assist with daily use.

� Advocate for regular staff meetings to discuss problems with the systems and potential solu- tions, and access information technology staff for help when needed.

� Based on patient load, work ahead if possible and enter available information before patient visits. To facilitate this task, ask for administra- tive time to complete data entry.

� Explain the electronic documentation proced- ure to patients and let them know they can interrupt with questions or relay additional information.

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� Maintain as much eye contact with patients as possible. Talk with patients before entering information into the electronic record, and alternate between documentation and conversation.20

� Read back information as you type it into the system. When providers follow this practice for verification, patients feel more secure that their medical records are correct.20

� If possible, work with practice management to design or arrange examination rooms to facilitate communication with the patient,20

such as sitting at a small desk and facing the patient or utilizing a tablet when documenting data.

� Do not rush when entering data, avoid jargon, and review information before finalizing the entry, including patient name, age, and sex; diagnosis; current medications and new pre- scriptions ordered; lab and/or radiology tests ordered; follow-up appointments; when to see his or her primary care physician; and referrals to specialists. This is critical if using voice dictation or working with a “medical scribe” or unlicensed staff member who handles docu- mentation and data entry.

� Many systems either warn or will not allow “impossible” information, such as a hysterec- tomy code for a male patient, but NPs should not rely on the system for detecting docu- mentation errors.

� Remember that each patient encounter should be recorded as a stand-alone record and that the integrity of the EHR is vital.30 Try to avoid cut-and-paste and cloning notes to save time.

� Templates may not exist for specific problems or visit type. This can occur if the structure of a note does not fit clinically or reflect the patient’s condition and services. In addition, atypical patients may have multiple problems or exten- sive interventions that must be documented in detail.30

� Have ICD-10 codebooks available as a refer- ence in case templates or drop-down boxes are narrow in focus and do not provide appropriate diagnostic information. Create a “cheat sheet”

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110

or coding cards for common codes used based on specialty or care areas.

� To avoid medication errors, request that check boxes associated with dose amounts be placed further apart on the drug ordering screen or have a pop-up box that confirms the ordered medications before closing out of the record. Consider working with practice administration to institute procedures that routinely update and reconcile patient medication lists.31

� With practice administration, establish processes for logging all activity for the EMR or EHR, including processes for addendums, corrections, retractions, and deletions, as well as a definition for the time period for “locking” and “unlocking” the EHR.32 Corrections, amendments, clarifications, and additions to a medical record are a normal part of clinical documentation. The system should handle these events easily, thoroughly, and properly, as outlined by the facility; CMS guidelines; and federal, state, and local laws (personal communication, CNA and Nurses Service Organization, May 9, 2016). If you make a mistake in a patient record and depend on someone else to correct it, confirm that the record has been appropriately corrected.31

� Check for duplication and conflicts. Despite systems that will not allow duplication of pa- tient identification numbers or ones that warn of conflicting medical management options, there is emerging evidence of a phenomenon known as “prompt fatigue.” This can lead to lack of use or even misuse by providers entering information (personal communication, CNA and Nurses Service Organization, May 9, 2016).

� In conjunction with practice administration, define a policy if your workplace is using both a computerized health information system and paper charts.

� To ensure confidentiality, do not share your password and change it frequently. Review your office or hospital’s medical information confidentiality policy.

� Ensure that you are fully trained on policies, procedures, and system functions and capabil- ities to prevent system fraud, as well as security

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and integrity requirements, what constitutes violations of EHR policy, and procedure consequences.30

� Carry your own malpractice/disciplinary in- surance (versus insurance for your hospital and/ or private practice). This is important with increased adoption of EMRs and EHRs and the anticipated increase in medical professional lia- bility claims associated with their use.

Additional resources for best practices to prevent adverse events related to health information tech- nology include the Office of the National Coordi- nator of Health Information Technology Safety Assurance Factors for EHR Resilience Guides for EHRs.33 The American Health Information Management Association also has compiled best practices for EHR documentation.30

CONCLUSION Computerized health information systems have become a fixture in health care. However, in their current state, these systems can be inefficient and hard to use, and their promises of improved quality, increased efficiency, and reduced costs remain un- fulfilled. NPs are balancing heavy patient loads with data entry and reporting requirements, often bemoaning the negative impact these systems have made on all encounters. At the same time, NPs increasingly recognize that information technology generally is critical for improving the quality of care, and therefore are committed to working with these systems rather than against them.

With that said, NPs must work to protect them- selves and their patients. They can do this by taking advantage of all training that supports the EMR or EHR in their practice or hospital. They need to ensure accuracy in the record and learn how to work with the systems as they were intended. NPs also should be aware of hidden liabilities associated with these systems and follow best practices when entering information, especially with annotations, addenda, and corrections after patient visits. By incorporating these recommendations into their practices, NPs can help ensure quality patient care and increased effi- ciency, as well as help protect themselves against a malpractice claim or Board of Nursing complaint that could affect their ability to practice medicine.

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With luck, next generation systems will have improved ease of use and better efficiencies, allowing us to return our focus on the patients we are there to serve.

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1555-4155/16/$ see front matter

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Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.