Elizabeth Harris Quoted in “Checkbox Charting Is Problem for ED Malpractice Defense”

ED Legal Letter June 2021

Elizabeth A. Harris, Associate in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Relias Media’s ED Legal Letter, in “Checkbox Charting Is Problem for ED Malpractice Defense,” by Stacey Kusterbeck. (Read the full version – subscription required.)

Following is an excerpt:

The ease of checkbox charting “requires provider attention and care in order to avoid potential exposure to a malpractice claim,” says Elizabeth A. Harris, an associate attorney in the Health Care and Life Sciences practice in the Washington, DC, office of Epstein Becker Green.

In malpractice cases, the ED medical record is a critical piece of evidence. The chart establishes whether the EP met the standard of care. The statute of limitations for medical malpractice cases ranges anywhere from one to five years, depending on the state. EP defendants testify about a patient from years ago. “The treatment in question may have been provided on a single occasion in a busy ER,” Harris notes.

EP defendants typically do not have an independent recollection of individual patients. Instead, they rely heavily on the chart when testifying. Details about the patient’s care can make or break the outcome of a claim. Checkboxes are not going to jog anyone’s memory.

“Lack of individualized detail can make describing the patient’s treatment more difficult for both the physician defendant and the expert witness,” Harris says.

Checkbox charting complicates the Checkbox charting complicates the defense of any medical malpractice claim, but there are other problems. “It can also present issues from a regulatory and reimbursement perspective,” Harris warns.

To receive reimbursement from Medicare and Medicaid, the medical record must support the level of service provided and demonstrate medical necessity.

“The use of checkbox charting can present the risk of a claim that the charting does not support the level of medical necessity required for reimbursement,” Harris says. This can lead to audits, investigations, or even False Claims Act liability, with possible hefty penalties. Harris recommends EPs clearly document their medical decision-making and provide individualized and detailed narratives to clarify or explain information, especially when pertinent to the patient’s chief complaint. For example, it is not enough to check the appropriate boxes for a chest pain patient. An individualized narrative about the cardiac exam performed and the results is needed.

Make sure the ED uses modified templates to allow EPs to add freeform text. Carefully review the record for accuracy before signing the note (including automatically populated checkboxes), either contemporaneously or close in time to the encounter. Finally, maintain a strong compliance program with regular medical record audits, including a review of electronic health record systems.

“This can improve clinician documentation, defend against medical malpractice claims, and decrease the risk of liability related to fraud and abuse,” Harris says.