EHR Audit trails, sticky notes, you're every move is being watched

[nexus73]

We recently moved to Epic EHR and noticed right off the bat an interesting function where if you copy forward an old note and then edit it for today, there is a button that will gray out the copied material. Pretty shocking when you see a note with a handful of black new text and 90% old text, even if none of the old text needs to be changed.

I am not an expert in EHR audit trails, but perusing LinkedIn there are many expert witnesses who specialize in extracting and analyzing the audit trail of EHRs for malpractice cases. Here is an article from 2018 outlining caution in use of EHR that everything you do, every note you select, every lab you view, how long you view it, or click you make will be recorded Be Mindful of Pandora’s Box – EHR Audit Trails and Litigation | The Cooperative of American Physicians

I'm sure it's not news to everyone here. But the surprising thing to me is how plaintiff malpractice attorneys are more and more often getting the audit trail analyzed to create more data to support a malpractice claim. As a physician this feels very intrusive. And we bring this software into our jobs and it creates data that gets used against us in a lawsuit. The EPIC sticky note function is another source of data as part of an audit trail, who created it, who looked at it, was critical patient information not seen?

All of this data is discoverable by a plaintiff in a malpractice case so watch yourself.

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[Sushirolls]

Yep.

Another point in the hat for private practice. Less Big Brother.

Or pick places that use non-Epic EMRs?

 

[calvnandhobbs68]

We recently moved to Epic EHR and noticed right off the bat an interesting function where if you copy forward an old note and then edit it for today, there is a button that will gray out the copied material. Pretty shocking when you see a note with a handful of black new text and 90% old text, even if none of the old text needs to be changed.

I am not an expert in EHR audit trails, but perusing LinkedIn there are many expert witnesses who specialize in extracting and analyzing the audit trail of EHRs for malpractice cases. Here is an article from 2018 outlining caution in use of EHR that everything you do, every note you select, every lab you view, how long you view it, or click you make will be recorded Be Mindful of Pandora’s Box – EHR Audit Trails and Litigation | The Cooperative of American Physicians

I'm sure it's not news to everyone here. But the surprising thing to me is how plaintiff malpractice attorneys are more and more often getting the audit trail analyzed to create more data to support a malpractice claim. As a physician this feels very intrusive. And we bring this software into our jobs and it creates data that gets used against us in a lawsuit. The EPIC sticky note function is another source of data as part of an audit trail, who created it, who looked at it, was critical patient information not seen?

All of this data is discoverable by a plaintiff in a malpractice case so watch yourself.

Just ridiculous. I didn't become a doctor so people can challenge me on if I spent 7 minutes vs 9 minutes writing a patient's note or reading records or what exact date and time did I review some stupid lab.

The copy forward thing actually wouldn't be too bad if we didn't have to worry about it being used in some malpractice case. It would actually be helpful for us as well to be able to zero in on the new information in each note, even though it's helpful for me to pull social history forward every time so I can remind myself that johnny is starting college in the fall or going into 10th grade this year or does actually have an IEP in place or not. Also highlights when stuff you usually skim over is actually updated. However, could definitely see people using it to say you didn't actually do most of your MSE because you copied it forward.....

 

[PikminOC]

Yep.

Another point in the hat for private practice. Less Big Brother.

Or pick places that use non-Epic EMRs?

Most places use an emr. And all can be tracked.

 

[Stagg737]

Eh, I'm not particularly concerned with the ability to see what was copied forward. If you're updating everything as you should then there's really no relevant legal argument for them to make. Also, dot phrases (templates) in Epic are so good that you can just delete a section, replace it with the same dot phrase in the note by typing ".phrase", and it will come up as original text, not copy/pasted. I do this with all my ROS and MSE even if there aren't any changes to be made so no one can say they weren't reviewed.

I don't use stickies. I don't really see a reason for them when you can just type it into the note and delete it later.

 

[AcronymAllergy]

This is something that somewhat recently showed up in VA's EMR (CPRS) as well, in terms of copied content being highlighted.

 

[FlowRate]

The EPIC sticky note function is another source of data as part of an audit trail, who created it, who looked at it, was critical patient information not seen?

This is the part that's news to me in terms of someone making the active assertion that it's discoverable. I'm not surprised that it is but, at least as implemented in our version, it's described as something only you can see (yellow) or notes for the team (blue.) If "only I can see" is actually "something plaintiff's lawyer can see" then I may want to start using it slightly differently. It is a place that I sometimes list things like c/f med overuse, patient vibe information, etc. that doesn't belong in the note but is important for me to keep in mind.

 

[nexus73]

This is the part that's news to me in terms of someone making the active assertion that it's discoverable. I'm not surprised that it is but, at least as implemented in our version, it's described as something only you can see (yellow) or notes for the team (blue.) If "only I can see" is actually "something plaintiff's lawyer can see" then I may want to start using it slightly differently. It is a place that I sometimes list things like c/f med overuse, patient vibe information, etc. that doesn't belong in the note but is important for me to keep in mind.

yeah, both an article I read on this and our Epic trainers said sticky notes are discoverable. I’d assume everything put into the EHR could be found by plaintiff attorney.

 

[Merovinge]

This is the part that's news to me in terms of someone making the active assertion that it's discoverable. I'm not surprised that it is but, at least as implemented in our version, it's described as something only you can see (yellow) or notes for the team (blue.) If "only I can see" is actually "something plaintiff's lawyer can see" then I may want to start using it slightly differently. It is a place that I sometimes list things like c/f med overuse, patient vibe information, etc. that doesn't belong in the note but is important for me to keep in mind.

Same, we were explicitly told at my last position that this sticky note information was not requestable from the patient/ shown to the patient (following the information blocking law passed). Did not realize that it was discoverable.

 

[nexus73]

Same, we were explicitly told at my last position that this sticky note information was not requestable from the patient/ shown to the patient (following the information blocking law passed). Did not realize that it was discoverable.

It may be specific to Epic that sticky note
info is saved. And I assume patients wouldn’t get this with regular record request. But attorney for malpractice could get all sticky note data assuming it’s saved in the EHR, and from what I’ve read it is saved.

 

[comp1]

You could always compare one note to another note. Heck, you could do that back in paper charting. This feature is useful to clinicians who are time stressed to see what changes were made. There's no difference for malpractice attorneys who always could and would check this if they thought they'd find anything. I mean I guess it takes them a little less time now, so they won't get quite the same number of billable hours. It's definitely not something to make a new focus of anxiety over.

 

[VA Hopeful Dr]

It may be specific to Epic that sticky note
info is saved. And I assume patients wouldn’t get this with regular record request. But attorney for malpractice could get all sticky note data assuming it’s saved in the EHR, and from what I’ve read it is saved.

Everything in Epic is saved (we learned this about a month ago as well).

Things like Chats and Messages to other Epic users can't be seen by the patient but the lawyers can get at them.

 

[Merovinge]

Everything in Epic is saved (we learned this about a month ago as well).

Things like Chats and Messages to other Epic users can't be seen by the patient but the lawyers can get at them.

Any idea how this compared to emails? If I am exchanging emails (encrypted between employees of the same company) about a patient at my job can lawyers audit my entire history of all emails sent as well?

 

[comp1]

Any idea how this compared to emails? If I am exchanging emails (encrypted between employees of the same company) about a patient at my job can lawyers audit my entire history of all emails sent as well?

This will be up to a judge and the specifics of the case. Lawyers can request anything they want. Whether a judge will deem it relevant or protected material is what matters. The bigger and broader the request, the less likely a judge is to grant it. Work emails are not necessarily part of the patient record, but a judge could decide whatever they wanted and if inappropriately decided, it could always be appealed.

 

[Ironspy]

every click in epic is saved. If you say you reviewed therapy notes or labs there is a record of you accessing them or not. Emails and texts (even deleted) are discoverable

 

[Bartelby]

Any idea how this compared to emails? If I am exchanging emails (encrypted between employees of the same company) about a patient at my job can lawyers audit my entire history of all emails sent as well?

Those emails about a patient are documents, and they will be subpoenaed by any decent malpractice attorney. The emails that are not directly about that patient should not be discoverable. I suspect a judge would support requiring you to turn over emails specifically about the patient during discovery. The main way to avoid doing so would be to lie and say that no such emails exist, but of course if the attorney learns you did so that would be a problem.

Be careful what you put in writing. Phone calls or face to face conversations are so valuable for tossing around ideas in part because they are not discoverable, at least not yet.

 

[Sushirolls]

And then we have some docs in PP doing paper notes with hand writing that can't be read, but yet the boxes are clearly checked for 99214 + 90833. I wonder if lawyers now and days even know what to do with a paper chart.

 

[mistafab]

So much malpractice is loads and loads of data that is irrelevant. Most are not going to big-brother your clicks in the EMR. There are literal pounds of worthless records already to sift through in malpractice cases. Malpractice that actually gets won is so egregiously bad that all DDDD are clearly qualified. Otherwise, if there is some merit people will typically want to settle.

I doubt they are going to rely on big-brothering you and every detail you clicked/viewed/spent time on in the EMR unless you were involved in fraud, or other criminal behavior with regards to billing. And if you are doing that, well you got bigger problems then big-brother.

Just speculation on my part.