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Recently, the Deputy Attorney General (DAG) in one state advanced an accusation against a licensed physician. The charge: He was using templates to document his notes. And the notes did not vary much from visit to visit. The doctor was also in the crosshairs for other alleged violations. But the documentation issue was the cherry on top of the Board complaint sundae.
Nonetheless, this allegation was buttressed by the DAG’s hired expert witness. Here’s what he wrote:
Standard of Care
Physicians are to document information regarding a patient’s evaluation, diagnoses, and treatment provided, including explanation of medical decision making and risks and benefits. (So far, so good. No debate here.)
Analysis
Dr. X’s clinic notes are all remarkably similar to one another, with certain portions being the verbatim the same for several visit. There is very little variation. Similarly, the exam provided is verbatim the same for every single visit. In the age of electronic medical records, physicians may find it helpful to use templates and to copy a prior note and then to modify it visit to visit, but Dr. X’s notes have very minimal variation. An occasional copied note without a complete update might be forgivable, but the consistent similarity between notes across many visits indicates a lack of effort and of negligence to properly document. (Shocking, right? Sarcasm intended.)
Conclusion
Extreme departure due to consistently poor quality of documentation. (Wow, not a simple departure from standard of care. But an extreme departure.)
Just how much of an outlier was this physician? Or any physician, for that matter, who copies and pastes into the EMR?
Well, it’s the norm.
Meaning, it IS the standard of care. If standard of care implies what a reasonable physician would do under same or similar circumstances.
A recent article in JAMA shed light on this conclusion. Prevalence and sources of duplicate information in the electronic medical record.
This study was based on analyzing 100 million clinic notes to detect the prevalence of duplication in the EMR.
More than half of all text was duplicated, more than 16.52 billion words in total. As of February 2022, the entirety of all English Wikipedia articles contained approximately 3.9 billion words; our note corpus is approximately 8 times as large, more than half of which was duplicated. Duplicate content was prevalent in notes written by physicians at all levels of training, nurses, and therapists, and was evenly divided between intra-author and inter-author duplication. Physicians wrote the notes with the largest amounts of novel information, but also wrote the longest notes, and included 30% to 70% duplicate content, so their notes were comprehensive but repetitive. In addition, as the number of notes increases, the proportion of duplicate content increases and then plateaus.
Importantly, the percent of duplicative content never goes down as the number of notes increase.
The authors continued:
Finding the right information is no longer a matter of flipping through a paper chart; it is more akin to reading large portions of a book (the mean patient record has 56% of the word count of William Shakespeare’s longest-written work, Hamlet). Our analysis shows that roughly half of text is directly duplicated, word for word, from elsewhere in the record, compounding the challenge of finding the right data to make appropriate clinical decisions.
Just how much material would a physician have to read in clinic if one actually read the entire chart?
In the corpus described here, the median record length was 4285 words; therefore, 10 records is 42,850 words, which is 81 standard single-spaced pages of 500 words each. Thus, a physician seeing 10 patients in a day would be responsible for reviewing at least 85 pages of single-spaced text across 691 notes. The duplicated half of the content not only provides no new information, but also increases the time required for the reading clinician attempting to discern which information is accurate and timely vs false or irrelevant. Overworked clinicians may be disincentivized from reading such a bloated record, missing valuable clinical context not easily found elsewhere (eg, reasons for past diagnostic or therapeutic decisions), and leading to wasted time repeating past interventions or directly causing patient harm by missing findings requiring follow-up.
Of course, this data propagates and accrues over time. And erroneous data can also propagate and accrue over time.
The EMRs with the greatest market share were designed and built with reimbursement in mind. So, it captures EVERYTHING. Data builds information. Information builds knowledge. Knowledge builds wisdom. Unfiltered data is often just distracting noise with no signal. Most physicians looking at the record naturally want to identify the signal, not the noise.
In short, most healthcare providers copy and paste. Sprinkling in some new stuff. This new stuff was what used to be in paper records; records one could scan in seconds, if not, minutes.
The authors of the article recommended several improvements – which is beyond the scope of this blog post.
Back to where I opened. It’s hard to believe that a Board of Medicine is attempting to pile allegations on a single physician for doing what everyone else does.
Shame on them.
What do you think?
"Can Medical Justice solve my problem?" Click here to review recent consultations...
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
First of all, what wrong is the physician accused of having committed? At most, it seems to be merely uninteresting writing. While unoriginal, that is only a crime in a creative writing class.
The analysis comparing the length of a medical record to that of Hamlet is enlightening, as is its implication for signal to noise ratio. In fact, if a patient is being followed for a condition that is static, seeing identically worded office notes is helpful: it makes it easy to see changes. The doctor expects to see a very commonly worded note and he does. He doesn’t actually read the note: he “sees” it.
Germane here is that we don’t usually “read” words as adults. We recognize them. In many to most cases, vowels, for example, are just kinda thrown in. Exceptions give us conjugations and declensions, but the bulk of the meaning is already there. Likely so, too, with medical records.
Was the attorney implying, though, that the similarity in wording across records meant that the doctor was either not seeing the patients? Or that he was seeing them unnecessarily? I didn’t see that stated anywhere in the article. Was that a subtext?
“ Unfiltered data is often just distracting noise with no signal.” This is a direct result of OCare and EHR, and socialized medicine. Bye bye miss American pie.
Which has significant implications for obtaining informed consent. At what point is more information actually less (useful) information?
I standardized my consent statement to an exact series of words that I always used, and I recited it conversationally, but slowly and clearly:
“In order for you to give informed consent, you have to be informed—and understand—that although it is unlikely, it is still possible for complications, potentially serious, even life-threatening complications to result from this procedure. Do you understand? [patient affirms]. Do you have any questions?”
Most had no questions, or if they did, they were trivial, like “how long will this take?” About 1 in 20 or so asked about the complications. That opened a different box, which I would the unpack in great detail. There was little to no noise, only signal.
When I worked on EHR prototypes for anesthesia in the mid 1980s, we had a large meeting at a famous hotel in NY with leading professors of anesthesia, and the vendors. The major concern at that time was making records more defensible for malpractice cases. Documentation or lack thereof during critical events was notoriously difficult to capture contemporaneously. IT was care for the patient and write up the events as best they could be recalled later on. We did not even have automated BP units in all ORs in those days, so we could not always capture a print out of the BP. Malpractice was the paramount concern. What had a case that was clearly documented by the EHR where the BP went to zero. BUT the BP was preferentially recorded from the arterial line which was in the same arm as the BP cuff. Even though HR, BP from the cuff, and pulse oximetry all demonstrated that the BP was not zero, the machine dutifully recorded it as zero. Professors from medical schools, said to just annotate it. Those from non academic environments said that it was going to open a huge malpractice can of worms. Annotation to correct a machine error was felt to be something that attorneys were going to call “covering one’s tracks”. There were legitimate concerns because some clinicians documented notes of intubation poorly and did not record anatomic abnormalities. But now we have the EHR creating completely new realms of malpractice that thorough documentation was designed to prevent.
As far as copied notes are concerned, in a SOAP progress note for a stable patient, what exactly did the reviewer expect would happen.
It is also interesting that software that was designed to catch college students when they copied sources instead of rewriting it in their own terms, has now been turned to the analysis of medical records, something it was never designed to do initially.
But the other problem is that the volume of pages of records which is being used to increase reimbursement and was a selling point for later EHR systems, doesn’t mean that it generates useful information to the clinician.
I have waded through hundreds of pages of hospital records for admissions for myself and my wife. When there were difficult problems that should have been described in an ongoing fashion with updates in progress notes, they were sorely lacking or were not accurate representations of conversations that physicians had with my wife in the hospital at the bedside. The distortion was really quite astonishing.
Correction of electronic records, such as the fact that there was a pregnancy recorded on my hospital record for a surgery (I am male), was something that I could never get corrected despite filing the proper records. The list just goes on and on.
One can expect that sooner or later, the medicare and medicaid fraud and abuse folks will get involved demanding fines and prosecutions for erroneous electronic records. The plaintiff’s bar will not be far behind.
So the EHR that was originally designed to take a burden off clinicians and improve documentation, has now assumed the role of obfuscator of the truth, with the spector of even greater malpractice claims caused by erroneous records, generated by clinicians trying to cope with the increasing complexity of what is required to be documented.
We did not see this coming, but we should have, based on my experiences from over 35 years ago.
Sadly, we have been gradually pushed down this precipice of inane and often unhelpful documentation. The insurance industry obsession with “documentation” in order to reimburse is what led to the cottage industry of “electronic health records”. We now have essentially no choice. I used to be very proud of my dictated notes and NO, I did not document the thorough medical history of the patient’s parents in most cases, but documented relevant history and physical exam related to a painful shoulder or injured wrist. I am not sure how to fix this problem other than collective physician disobedience and to focus on what is important. I discuss medical records quagmire in book, Healthcare from the Trenches
Dr. Badia: Collective Physician Disobedience will not work. There would be too many legal consequences. The only route left to physicians is a concierge practice, where there is no insurance or government reimbursement and thus no insurance or government mandates about documentation and coding. As long as decent documentation is provided, I do not see that malpractice carriers would object. They too are reading those electronically generated notes that are worth less than the kind of documentation that you might do. Again malpractice carriers wanted better documentation then they were getting 35 years ago, thus the push for EHRs. However today’s electronic documentation is in many ways poorer than in the old days. The EHRs don’t give you a sense of where the patient is or where the patient is going. Part of this issue regarding documentation and thus the need for scribes for the EHR is the push to see as many patients as possible per hour. However, I have not seen documentation of malpractice cases brought because the scribe did an incomplete job of documentation or worse, simply recorded things incorrectly. Do physicians review the scribes notes? Doubtful. But no attorney would ever let a physician avoid review or a court reporter’s transcription of a deposition.
Interesting… retired.
That may be my nickname as well soon given the increasing moral injury to my physician consciousness. It is not burnout. So, yes, the solution is the concierge practice and that is what I have been doing for last decade, even focusing on international patients who , say, do not have access to wrist arthroscopy in their countries;. However, this does not solve our collective healthcare woes and I truly worry about our country’s future and that of my teen children. I would love to hear your feedback on my book….
Dr. Badia: After I retired from practice 9 years ago, I started a cost reduction consultancy business (for multiple different cost categories, like medical waste, telecom, merchant services, etc.) . The inmates were running the asylum at that point in the hospital. Physicians that I have encountered since, tell me how much worse things have gotten in the intervening 9 years. I would love to read your book but my reading time is pretty limited these days. So much catch up reading to do when I retire from this business. I would have enjoyed working with you in the operating room. I can’t worry about healthcare later on. I am worried enough about whether I can get decent care when I am alive. The government hand in healthcare has lead to 5 times (or more) administrators compared to 25 years ago. The only area that hospitals have been able to cut costs for is clinical care. We have not yet seen in all states a mandate about the number of nurses per patient on the floor. In one of the hospitals I worked in, there would be 1 RN, 1LPN and 2 CNA for 20 patients, with the RN providing oversight for all 20. This is just an impossible situation for patients and nurses. Clearly the specialists that attended to my wife in the hospital this year did not read each others notes, and the hand off from one team to another was poor. No one physician took ownership of my wife’s care and rounded on her daily. So different from when I was a resident decades ago.
I could tell from the start that EMR’s were going to be cumbersome and altogether NOT helpful. They have caused more work, more paper and often it is harder to find information that previously was easy to find in a paper record. I wish I was old enough to have finished practice before they came out or young enough to not know the difference. One caveat however is that there are a fair number of physicians and other practitioners that copy and paste and do not update and the notes DO NOT reflect what went on in the visit. Also sometimes the visit is extremely short because of the volume required by the practice to keep their heads above water to pay for the EMR along with all the other costs of running a practice. It has taken a lot of the fun and enjoyment out of practicing medicine. I am so frustrated with it all. So many of these EMR’s also do not talk to one another and the physician who is helping to develop them is usually not one who has ever really practiced medicine in the trenches. If you don’t know what it is like to see complicated patients throughout a long day then you have no business creating or even being involved in development of an EMR (as a physician).
The interoperability standard for EHR systems was supposed to be promulgated by the US government in 2009. It never happened. So these EHR systems do not talk to each other let alone to the government which wanted real time reporting for disease tracking purposes. Some practices have opted to have scribes to record the discussion during office visits. I have not seen a malpractice case yet regarding what was recorded versus what actually ensued, but that will come some day. The EHR systems were not designed with clinicians in mind. They were also not designed to take into account all of the different specialties that document in the medical record, and the different ways that records are documented. Psychiatrists, radiologists, ER physicians, surgeons, anesthesiologists and neurologists all record in very different ways in the medical record. In addition in the hospital setting there are respiratory therapists, pharmacists, nurses, physicians, nutritionists, physical therapists, and others recording in the EHR. Those different specialty areas also all record differently. Is there a way just to look at physician notes without looking at everything else? Not necessarily. Is there a way to record from a specialty specific template? There used to be for specialty specific EHRs, but the hospitals want to use a hospital wide generic system, and then do not want to pay for the individual specialty specific software.
If the Hitech had never been passed mandating EHRs, and EHRs had been allowed to evolve according to market needs we might see a much more user friendly product. But the idea that one has to undergo specific training for the use of each specific EHR product in order to use them efficiently and effectively is a lot to ask of physicians and other persons that need to document in the medical record.
Additionally in trying to comb through medical records, there is a tremendous amount of duplication, and data that is poorly organized. That forces physicians to have to scroll through many useless pages of duplicative data, in order to cull the wheat from the chaff. Is it possible to miss important information because of poor organization of EHR information? Absolutely. This induces additional malpractice risks that were never envisioned when we were first working on prototypes in 1985.