Guest Blog May #3 – Nursing Home Negligence and EMRs

Guest Blog May #3 – Nursing Home Negligence and EMRs

As a nursing home negligence lawyer, I frequently review charts from residential care facilities, including nursing homes, group homes, long-term care facilities, rehab centers and skilled nursing facilities.  Lawsuits can arise from these facilities due to elder abuse, neglect, assault, falls, fractured hips, malnutrition, dehydration, pressures sores, pressure ulcers, use of restraints or side rails that result in choking and asphyxiation, delayed diagnosis, delayed treatment and wandering (aka elopement) of dementia patients that result in drowning or freezing.  These cases are all too common.  Worse yet, they impact the most vulnerable populations, including the elderly, and individuals with developmental disabilities and physical disabilities.

In reviewing potential nursing home negligence or group home negligence cases, it is important to obtain a complete copy of the injured individual’s chart, including all nursing notes, medical administration records (MAR), the care plan, orders and, where applicable, wound care notes.  

Historically, residential care facilities, unlike hospitals, continue to maintain their chart in a paper format, rather than an electronic format.  That is changing.  The U.S. Department of Health & Human Services reported in March, 2020 that approximately 26% of residential care facilities are now using an electronic medical record (EMR), also known as an electronic health record (EHR), to maintain residents’ records.  Previously, only 20% of such facilities used the EMR.  

The change from a paper format to a digital format for medical records raises important issues for a nursing home negligence lawyer.  First, EMRs create various privacy concerns.  The HIPAA law, which requires confidentiality of protected health information, mandates that certain safeguards be used to prevent unauthorized access to residents’ EMRs.  These safeguards include administrative safeguards such as training and a disciplinary policy designed to discourage snooping by employees.  In addition, patients’ privacy should be guarded by technical and physical safeguards that prevent unauthorized access by nonemployees, such as hacking to obtain financial information.  These physical and technical safeguards are also meant to prevent employees from snooping on residents’ medical records when they have no business reason to do so.  

When an employee snoops into a resident’s medical record, the facility is subject to a number of potential lawsuits.  While the HIPAA law does not include a private right of action that empowers a resident to file a lawsuit and collect a civil penalty against an offending nursing home or group home, Ohio common law provides that a nursing home negligence lawyer can file a lawsuit for violation of the resident’s right to privacy.  In addition, healthcare providers owe a fiduciary duty to protect the interests of patients.  Failure to do so raises the possibility of a lawsuit for breach of fiduciary duty.  Finally, Ohio’s nursing home laws may afford some protection to the resident.

The EMR also raises concerns about patient safety.  Medical literature reports instances of “e-iatrogenic” injuries.  Iatrogenic injuries are those caused by the actions of a healthcare provider, such as a nursing home’s medical director, registered nurse or nurse’s aide.  E-iatrogenic injuries are those that occur as a result of glitches contained within the EMR that result in personal injury to a resident or a wrongful death.  Such e-iatrogenic injuries include medication errors, dosing errors, overdose, and lack of monitoring.  

Finally, the EMR is subject to alteration.  Because the resident’s medical records are contained in an electronic format, healthcare workers can access old records and change them to make it look like appropriate care was provided.  Under Ohio law, this is called alteration or spoliation.  With paper charts, alteration and spoliation is more obvious since handwritten entries are crossed out or changed with different ink or handwriting.  These changes alert a nursing home negligence lawyer to possible fraud.  With an EMR, a detailed audit must be undertaken to identify the alteration of the medical record.  EMRs include audit trails that show when individuals accessed the record, along with the date, time and content added.  Insurance company lawyers fight to prevent patients from obtaining these audit trails or from accessing the metadata contained in the audit trail through electronic access to the record.  Some courts unwittingly protect the nursing homes or group homes from access, even though access is specifically required by the HIPAA law.  Due to the time and expense associated with such an audit, most nursing home abuse and neglect lawyers do not routinely undertake such examinations.  There must be some other facts that raise suspicion.

With the increasing use of EMRs, nursing home abuse and neglect lawyers will need to understand this electronic technology and approach it in a different way than a paper chart.  If you have questions about potential nursing home negligence or group home negligence, you should contact an experienced nursing home abuse lawyer in Cleveland, OH for assistance.

Thanks to Mishkind Kulwicki Law Co., L.P.A. for their insight into personal injury claims and nursing home negligence.

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