The Hidden Liability in Your EMR: How Documentation Errors Drive Medical Malpractice Claims

Electronic Medical Records (EMRs) play a vital role in today’s health and legal landscape, ensuring effective patient care and serving as essential evidence in health-related litigation. Research, as shared in the 2024 Candello Benchmarking Report on “The Effect of Documentation on Defensibility and Patient Safety,” suggests that nearly twenty percent of medical malpractice cases involve at least one documentation failure. Moreover, the Report also indicates that documentation issues within EMRs more than double the odds of a case closing with an indemnity payment. Common EMR deficiencies include inadequate clinical documentation, inconsistent entries, incomplete informed consent records, illegible notes, and altered information.

EMRs as Evidence in Malpractice Litigation

EMRs serve as primary evidence in medical malpractice litigation. They can establish whether the standard of care was met and be used to assess whether a plaintiff’s alleged injuries are causally related to the treatment at issue. When determining if a practitioner deviated from the standard of care, medical records establish medical chronology, the reasoning behind clinical decisions, and the presence or absence of diagnostic testing. However, even in instances of exemplary medical care, EMRs frequently lack key data, which can undermine a medical provider’s defense and create issues of fact regarding the standard of care and informed consent discussions.

It is crucial to understand that medical outcomes are imperfect. A patient’s medical team can exercise care and expertise beyond any measurable standard, but the end result can still be undesirable. It is in these instances that accurate medical record documentation becomes paramount and often makes a significant difference in litigation outcomes.

Why EMRs Can Fail as Evidence

Beyond the technical limitations of EMR systems, human factors also play a major role. In high-stakes environments such as hospitals, inadvertent gaps can occur in EMRs because the demands of treatment can make it challenging for practitioners to complete accurate contemporaneous documentation. However, even in routine clinical visits, EMRs may fail to capture essential findings where a practitioner observes no change from previous results or determines that clinical findings are within the normal range. In some instances, facilities may use EMR systems, but individual doctors may find it more expeditious to handwrite chart notes. But if the handwritten notes are not incorporated into the EMR, the inconsistency can impact the doctor’s credibility regarding treatment and even give the appearance that later revisions were made to the record.

EMRs may also contain confusing information if notations are carried over from previous visits without explanation, such as when an EMR program “auto-populates” results (i.e., carries over information from prior examinations, even if the diagnostic testing did not occur at every visit). Many EMR systems also feature a copy-and-paste function designed primarily to increase efficiency by saving time on repetitive data entry. This allows for the quick transfer of information between different parts of a patient’s record, such as copying a patient’s history or a previous examination into a new progress note, facilitating efficient documentation. However, this feature can introduce significant documentation problems by preserving outdated or conflicting information across multiple notes or encounters.

Importance of Complete Diagnostic Documentation

Diagnostic testing and results are especially crucial in medical disputes because they provide objective information regarding a patient’s condition. When medical records fail to document the ordering, performance, or results of such tests, the absence of this information may leave defendant providers or facilities particularly vulnerable in litigation. Such omissions can undermine expert testimony, even when the underlying care met accepted standards.

Without accurate notation, a plaintiff can impute several scenarios to “fill in the blanks” in the missing documentation.

Sample Case 1: Plaintiff alleges a failure to diagnose. The defendant doctor performed diagnostic testing but did not record the results because they were within the normal range. Without the actual notation, this could be fatal to the doctor’s case, as the plaintiff could credibly allege that the testing was never performed.

Sample Case 2: Plaintiff alleges that a surgical procedure was contraindicated. The defendant doctor performed diagnostic testing but included only a cursory notation in the handwritten chart and failed to fully document the testing in the EMR. The inconsistent notation may affect the doctor’s credibility and suggest that the surgery should not have occurred.

Resolving Inaccurate Diagnostic Documentation in Litigation

To mitigate risk and exposure in litigation, doctors and facilities should be counseled regarding the accuracy of EMRs as evidentiary material. When recordkeeping is incomplete, certain strategies can reduce exposure. Because diagnostic testing is typically billed directly to the individual or their insurance provider (including Medicaid/Medicare), documentation of the testing may appear in the billing records, even if corresponding notations are absent from the chart. Testimony by a doctor regarding their pattern and practice (for example, whether specific tests are always part of routine workups, or whether normal diagnostic results are not recorded) can also help clarify an issue in the record.

Proactive Risk Management in EMR Documentation

Having standardized protocols for documenting treatment can potentially mitigate legal exposure. Legal counsel can help develop EMR policies and training programs that emphasize litigation defensibility. Regular EMR audits for completeness, accuracy, and regulatory compliance can identify documentation issues early and reduce adverse findings in discovery. Maintaining secure backup systems and clear audit trails/access logs can also preserve data integrity and strengthen defenses against allegations of spoliation or record alteration.

Attorneys should foster proactive collaboration with health care providers. Early attention to documentation standards can prevent disputes, reduce liability exposure, and support a robust defense when claims arise.

Long-Term Strategies for Reducing EMR-Related Risk

While proactive risk management addresses immediate exposure, lasting progress depends on broader structural change. Integrating best practices for EMR utilization early in medical education is gaining momentum. Many medical schools have added EMR training to their students’ agendas. Several Association of American Medical Colleges (AAMC) institutions have taken steps to ensure that students are introduced to environments that incorporate EMRs into the learning experience. Educating future health care professionals on best EMR practices during the early stages of their careers will hopefully result in the reduction of EMR-related liability issues and enhance patient care and safety.

Artificial intelligence (AI) may also offer an effective solution to several challenges related to EMR documentation issues. Proponents believe these emerging technologies can enhance the quality, accuracy, and efficiency of clinical documentation. New AI-driven software can convert physician notes from an EMR into structured data and extract key clinical information. Recent studies highlight the potential for AI to evaluate documentation quality. Algorithms can assess whether notes are consistent with prior entries, free of contradictions, and contain all necessary details. Automated reviews can alert clinicians to possible errors before finalization, while larger-scale analysis can reveal patterns of recurring omissions or inconsistencies across departments. By identifying systemic weaknesses in documentation practices, AI can guide targeted quality improvement initiatives. And while there are major barriers to the widespread adoption of AI in EMR software beyond the obvious legal risks, the major advancements in this field over the past few years imply that, at some point, AI could be a very effective tool in enhancing patient care.

Conclusion

The importance of accurate EMR documentation cannot be overstated. Attorneys advising clients in the health care sector must emphasize that accurate documentation is a critical tool for litigation preparedness and risk management. A well-maintained EMR can mean the difference between a strong defense and significant legal exposure.

Meet the Authors

Elena Zoniadis, Associate

Wilson Elser

Elena Zoniadis focuses her practice on medical malpractice defense and litigation. She
has a demonstrated commitment to client-centered and results-oriented legal
representation and is experienced in resolving legal matters from a nationwide policy level,
as well through litigation and direct client representation.

Joseph Randazzo, Associate

Wilson Elser

Joseph Randazzo focuses his practice on the defense of medical malpractice claims. His
clients include physicians, health care providers, long-term managed care organizations,
and medical centers. Joseph understands the challenges facing health care professionals
and prides himself on providing meticulous preparation and insightful strategies to resolve
various complex matters.