METADATA: A New Legal Foe to contend with.

Designer Microsoft.com 

      One of the greatest changes in the practice of medicine in recent years has been the introduction of the electronic medical record (EMR). A change heralded by many with significant promises, and welcoming enthusiasm at the time. However, this was not the case, especially when we started seeing “The Law of Unintended Consequences” play itself out in many allegations of medical malpractice across the country.  

      Thus, for many the good old days of the paper chart comfort and safety vanished rapidly from the charting landscape shortly thereafter. As we knew it, our former world of paper charting practices was turned inside out, and all because of a new unanticipated legal risk exposure introduced by this new technology—metadata. Plaintiff attorneys began and are still using EMR audited metadata to bolster their electronic discovery, much like they used to when subpoenaing paper charts to determine a case's merits; or to see if it was or is worthwhile to pursue. 

        Metadata is commonly defined as “data about data” by techno-savvy folks, that is, non-med-malpractice attorneys. Conversely, to med-mal attorneys is the data encrypted (attached) to an EMR that describes the file in its totality.  Basically, meaning the extra “hidden” (encoded) information that is created and embedded every time a chart is opened, amended, revised, or edited.  Essentially, this is tracking the author’s usage or “footprints” in a timeline fashion of a patient’s electronic medical record. Metadata is particularly important in healthcare litigation because it firmly establishes the “who,” “what,” “where,” “why,” “when,” and in many cases the “how,” basically analogous to someone’s fingerprints (1).  In other words, metadata shows the author’s log-on/log-off times, the dates & times of what was reviewed, revised, amended, added, or deleted, and for how long the chart was “open”.  This makes all electronic interactions not only documented and time-tracked, but ultimately discoverable too; therefore, potentially increasing the legal vulnerability of an EMR user.  

      Plus, this raises the risk/possibility of fraud allegations against the provider if the services rendered vs. billed are questionable by the EMR audit trail. These time stamps of clinical activity under Federal law are discoverable and admissible in most jurisdictions in civil trials (Williams vs. Sprint— United Management Co. 2005, WL2401626, D. Khan, Sep 29th, 2005). Legal experts believe the increased usage and spread of EMRs have reshaped the medical liability landscape by altering the way American courts will determine the Standard of Care.  

      Moreover, patient treatment errors may be unproven or unclear, yet the collective weight of time-care stamps discrepancies in alleged med-mal cases could be so heavy that in itself could render the case difficult to defend as many legal scholars as possible and theorists observe.  While discrepancies in general do not necessarily mean negligence, they certainly can call into question the provider's credibility rather easily.

 It is imperative for medical professionals to carefully and timely chart patient records because metadata is making note of their every move.  

      Often times that’s all it takes in some juror’s mind…which story is the most credible one, the plaintiff’s or the defenses?  

Resources Researched: 

1. Blake, Carter, Note- EMRs: A Prescription for Medical Malpractice Liability? Vaid, J. Enterprises & Technology, L 385 (2011), Vol. XVII, Number 4. 

2. Kern, Steven, Hidden Malpractice Dangers in EMRs, Med Scape Business of Medicine, Dec 3, 2010 (589724), www.medscape.com assessed October 30th, 2015. The 2015 MAPA

Straight Talk About High-Risk Patients from a Medical Heuristic Lens

    Reflecting back as an orthopedic hospital-based and former Emergency Medicine Physician Assistant (EMPA) at an urban inner city Level I trauma center, one of my biggest challenges was not only to spot the drug-seeking patients or rule out subtle life-threatening presentations but also to juggle and manage flawlessly two other high-risk types of patients: the “bounced-back” and the unimproved “signed-out” ones. Two potential medical malpractice time bombs waiting to happen most likely if not afforded the right clinical follow-through diligence or taken seriously on your watch, particularly when the liability factor was transferred to you by a recently graduated colleague or an intern completing their shift. 

    Why is that you ask? Well, possibly because these two types of patients in some instances are usually either insufficiently or possibly improperly worked up as I came to find out many times to my dissatisfaction. Thus, easily leading you astray (if not cautious enough) in these supposedly ready-to-go  “signed off” patient-shared presentations by the initial clinician.  Especially when the clinical management or your partner’s clinical decision-making process was determined pending the patient sobering up or diagnostics results returning normal or  “within normal limits ” before you decide on the final disposition. This means you having the final say before you discharge that patient. However, you must ask yourself these questions beforehand: Do I have all the pieces of the puzzle fitting properly before discharging the patient? Does the presentation, history, and findings fit the signed-out report given to me? 

    Typically these patients can present already diagnosed or labeled by another facility healthcare provider or simply yet by one of your very own colleagues from a different shift. This pre-packaging can easily lull you into a false sense of security. And, therein lies the legal risks & challenge(s). Given these situations unconsciously you are more apt to engage in potentially perilous clinical activities or behaviors unlike your usual methodical approach when working up your own patients. These faulty cognitive derailers like the following examples listed next can set you up for significant medical mishaps. Let’s dissect them and expose their perilous outcomes, to both, you the provider, and the patient, the recipient of your faulty or flawed narrow-framed medical decision-making shortcuts known as heuristics. Here they are: 

1. Overconfidence Bias. Beware and be careful of either you considering yourself or the other party as competently flawless as you think you are. Always be cognizant of this dangerous mindset because you or your partner may have acted on incomplete information, hunches, or very limited obtained data for that matter. This type of delusion of grandeur may result in catastrophic outcomes if we tend to believe we know more than we do, especially if we never had the “right” information or re-analyzed/re-assessed the presentation and/or signed off the patient altogether. Remember, even the best of us can have “off days” no one is perfect, especially at the end of their shifts–when they are most tired, fatigued, and very likely disengaged. 

2. Diagnosis Momentum Bias. This mindset has fooled many clinicians and accounts for many “missed diagnoses” simply because you have accepted what someone else or a few others have diagnosed the patient with. However, you may not realize or be aware that provider A, provider B, or provider C never objectively proved the patient’s recurring or for instance their unimproved symptomatology. For all practical purposes, you engaged in becoming a “clinical copycat” since the “dx” had already been made incorrectly and you went all along with it. So why reinvent the wheel? Again, clinical syndromes are not static, they evolve possibly leading to clinical instability in which you could miss a window of opportunity if fixated with the “signed-out” presented to you. 

3. Search Satisfied Bias: Here the element of premature closure surfaces because either you found or didn’t find what you were looking for in the history or physical exam. Or better yet, your cursory workup was acceptable at face value. Again, be aware not everything presents classically or the overlapping symptoms may be pointing to more than one condition. This phenomenon is very well-known and documented in many trauma-related presentations. Patients can present with different ailments/conditions that can be masked because they have a “distracting injury” or presentation for that matter. Therefore, it's best to do a secondary survey after the first one if no relevant or critical information was obtained initially. The bottom line is that you must remain vigilant and suspicious if the patient’s condition is unimproved or worsening or if alcohol is involved too. 

4. Anchoring Bias. In this situation, your colleague may have simply latched onto thinking his/her “first impression” was right or the only plausible one, therefore holding firmly onto that specific diagnosis. A very detrimental perspective or path to take when a patient’s course begins to prove inconsistent with the first diagnostic impression. This undue exerted influence or progressive development if it were to remain uncorrected, can certainly lead to possible allegations of a) failure to dx, b) failure to treat; c) failure to refer, or even d) wrongful death in some cases. This clinical inflexibility is very significant in the eyes of a judge and/or jury when the outcome of care is disastrous in terms of the outcome if there was a foreseeable medical intervention.  

5. Availability Bias. In this situation the clinician simply latches onto thinking his/her “first impression” is right thus holding firmly onto a specific diagnosis. A very detrimental stance to take when a patient’s course begins to prove inconsistent with the first diagnostic impression expected. Again this undue exerted influence or progressive development if it were to remain uncorrected, can certainly lead to possible allegations of a) failure to dx, b) failure to treat; c) failure to refer, or even d) wrongful death in some cases. This clinical inflexibility is very significant in the eyes of a jury.

Surviving the Phone Interview and the Deposition

What does one have to do with the other? I bet that was your 1st visceral gut reaction when you read the title–right? If so, allow me to explain and reveal the similarities these two unlike events hold. But, more importantly, let me explain how to deal with them while improving your outcomes when faced by either one in your career.

 So how are they possibly similar? Essentially, at their core they both are basic interrogative (fact-finding) dialogues between two parties. Basically, during a phone interview, the potential employer is seeking to uncover and/or ascertain past employment “liabilities”. 

Likewise, so does the plaintiff's attorney, s/he wants to uncover and/or ascertain where the liability came into play when the patient suffered a negative outcome (damages). Keep in mind, that each party has an agenda to meet. Generally speaking, in both instances, PAs can not only survive but actually shift the odds in their favor by keeping these tips & principles in mind when confronted by either one: 

1. Be Relaxed—being tense will only increase your stress level and thus fog your recall abilities during the interrogatory engagement.  Be natural—don’t pretend, just be yourself and things will go more smoothly  

2. Scripted or unscripted?—try not to worry about giving “the perfect answer”. Just a truthful one. Otherwise, it will sound too contrived anyway. Concentrate on the question and not on the interrogator’s tone or inquiring style or techniques used on you. By employing this strategy, you will be yourself all throughout the conversation. Avoid canned responses.

3. Be disciplined—avoid giving rambling responses or giving knee-jerk responses. Attempt to keep your answers focused, meaning to the point (the questions asked). Experts suggest &  believe that responses under 30 seconds are always best unless otherwise asked to elaborate by the querying party. It will make you look poised, confident, and assured. 

4. Be factual—it is important to be specific and objective. Do not assume or editorialize incidents or circumstances. Truthful responses are always best. If unsure, request the interrogator to rephrase the query. Also, give examples of past work performances. Substantiate all your responses.  How do the liabilities stack up? No one would argue that both situations are the same. 

Sure, the stakes are higher during a deposition than with a phone interview. But, I for one, wouldn’t disagree either, yet, they can be analogous in so many ways. Therefore, after reading this article you should have less to fear when confronted with either situation in your career. And without a doubt, ramifications can be significant in both instances, especially when unprepared comments are made either during the phone interview or the deposition. A costly mistake can lead you to a lost job offer or a career bump along the way. On the other hand,  a poor deposition performance could cost even more. In either case, you still have the ultimate chance to turn the tables around a bit in your favor if you can keep your composure while remembering these commonalities in mind and implementing these four tips to the best of your abilities during these stressful incidents.