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ALL MD Attorney John Degnan (Full Interview) on Healthcare Matters

By John Degnan to EMR/EHR


In this episode, Healthcare Matters interviews ALL MD attorney John Degnan on how the move from paper to electronic medical records (EMRs) has affected the best practices for entering data into a patient’s chart, how he would advise EMR companies improve their product as its relates to medical liability defense, how plaintiff’s counsel can exploit an EMR’s audit and access log in a malpractice trial as well as risk management tips for maintaining HIPAA confidentiality in regard to EMRs.

Degnan is a shareholder at BRIGGS & MORGAN. He practices law in Minnesota, representing clients in business disputes, as well as members of the legal and medical communities in professional matters.

Degnan is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.

Interview was recorded September 4, 2015


Mike Matray: Hi, and welcome to Healthcare Matters where the medical and legal communities come together to discuss healthcare matters. Today’s guest is John Degnan. John’s a shareholder with Briggs and Morgan in Minneapolis, Minnesota where he specializes in business litigation including medical profession liability. John has represented clients with electronic medical record issues and has experience with HIPAA and HITECH Act.

Welcome to Healthcare Matters, John.

John Degnan: Thank you. I’m happy to be here.

Mike: How has the move from paper medical records to electronic medical records affected best practices for entering data into a patient’s chart? And what guidance would you give physicians so that they’re using best practices when entering data into their patient’s medical records?

John: Well, overall I think it’s a very positive move because it leads to a lot more continuity even across different medical providers. However, there are some adjustments that, I think, have to be made by physicians. For example, the most important thing is to make sure that the dropdowns or checklists that are used are absolutely accurate for that individual patient. Close doesn’t count, obviously, in charting. And so if indeed some of the dropdowns don’t exactly capture what the situation is for that physician, it’s very important to be able to free-text or explain it so that at the time it’s accurately recorded so that later on it will help. Not only in the care for patients but in the event of any claim or question about the care.

The other is to be careful about corrections being made. It should be done like it used to be. That is making it clear that there are tracks in the snow because some providers that allow for deletions but some of them later on show up only as deletions and don’t show what’s deleted. So it looks like some record is destroyed. So it’s very important to leave what I call the tracks in the snow.

Mike: So even a benign deletion could be considered to be nefarious?

John: Absolutely. We had one case in which it was good care, defensible case. But there were about 10 items where there were deletions of just simple words. But the way that that provider had it set up, all it showed was deletion, and so it looked like destroyed evidence. There was an adverse inference called for. In other words, it must have been bad, ladies and gentlemen of the jury, or they wouldn’t have destroyed it. It led to a case that should have been defended but couldn’t be. And the cost for it was about two to three times what the value was just because of the prejudicial nature of that.

Mike: A recent RAND Corp American Medical Society study called for a complete design overhaul of electronic medical records to improve their usability. If you had the opportunity to advise an EMR industry on a redesign of its products, what changes would most benefit the defensibility of a medical malpractice claim?

John: I think updating the system. One of the best systems out was still based on the DOS or pre-DOS system. And so when copies of the records are made in paper form, they don’t resemble what the physicians saw at the time. So even with that system to write reports so that you get exactly the copies that replicate or resemble what was on the computer at the time, or also designing a way for the computer to be replicated so that again later on someone could look at exactly what the physician saw at the time.

Mike: An EMR’s audit log and access log can often be the Achilles’ heel in defending a malpractice claim. Can you explain the audit access log to our viewers, how plaintiff’s counsel can exploit it and how a healthcare professional can avoid these specific pitfalls when using an EMR or electronic medical record?

John: Sure. These audits capture virtually everything that has taken place in the record. That is each time someone enters it, it records exactly who was in the record, when, what was done with the record. And so it can be the physician’s or medical provider’s best friend or worst enemy. In other words, it can exactly duplicate or show what was done at the time. And oftentimes that will even maybe help to avoid a claim.

On the other hand, if changes are made and they’re not clear, or as we refer to the changes and deletions and don’t show what it is, the other side can use that to show that they must be destroying evidence, hiding something, and then they get the benefit of telling the jury it must have been bad. And even in regulatory systems responding to subpoenas by the state or federal governments, it’s very important so that it can be easily seen and it avoids issues that could be raised by that entity.

Mike: HIPAA data breaches are emerging as one of the largest systemic risks for a hospital or a large group in the modern healthcare delivery system. What risk management advice would you give physician clients for maintaining HIPAA confidentiality within their EMR system?

John: I think overall the medical providers do a good job. In many ways it’s probably as secure or more secure than the old paper records. But there are certain steps that can be taken. Particularly though, I think there’s a tension obviously with the provider always trying to protect the confidentiality and yet looking for ways to improve accessibility, particularly later on as we indicated. If you want to show later on exactly what the physician was looking at, at the time it’s important to have a system so that one can look at the computer again and see exactly what the physician saw at the time.

I think there are ways to do it but they have to pay particular attention to it, putting it together upfront when they’re putting the records system in place.

Mike: In your defense of medical liability claims, what have been the most common errors or liabilities in a physician’s use of electronic medical records, and how do you advise your physician clients to avoid these specific errors and liabilities in the future?

John: Well, the medical records that are electronic in nature are very user-friendly in many ways once a provider gets to use them. And they’re more efficient. However, with all the dropdowns and checklists, one has to be careful to make sure that it’s absolutely accurate that it captures the situation with that particular patient at that time. And if none of the dropdowns exactly portray what the physician is seeing, then you pick the best one. But also go on to do whatever necessary in terms of free-texting to be sure that it captures exactly what the situation is.

The other new issue that’s starting to arise is the way that we communicate now is so often not only by email but by text. And even some physicians are doing this with the patients. Text should be avoided, obviously, because no one can maintain the record of that. And emails are fine as long as they’re within the system. Like, My Chart is one of the common ones around in our region. That allows for communicating very basically with an email with your physician but it’s captured within the system so that it’s preserved. What one wants to avoid is not to email back and forth with Gmail because there’s no way to really maintain a complete record of the communications with the patients.

Mike: Fantastic. Well, I’d like to thank John Degnan for coming on our show today. It’s been a pleasure and I hope you’ll come back soon.

John: Well, I hope I’m invited back. I enjoyed it. Thank you very much.