A study conducted by the American Academy of Family Physicians (“AAFP”), identified a variey of conditions which were most likely to result in malpractice claims or disciplinary proceedings by state licensing authorities. While prescription errors were by far the most common, the failure to diagnose a variety of conditions (including acute myocardial infarction, lung cancer, breast cancer, colon cancer, appendicitis, meningitis, pulmonary embolism, diabetes, and conditions arising from symptoms characterized by abdominal or pelvic pain) were also identified.

It appears that many of these errors stemmed from the inability to coordinate care or assure appropriate follow-up, rather than a lack of medical skill. Many professionals believe that morbidity may be reduced (and legal risk may be minimized) by implementing electronic medical record keeping systems (“EMR”) designed to assure, and vividly document, thast which is necessary to reduce morbidity and the risk of malpractice or disciplinary action. Additionally, the implemenation of such systems will leave the physican well equipped with a well-documented office record that is necessary to contest any third party audit and demand for repayment.

For example, in the outpatient setting, malpractice claims or misconduct investigations are often spurred by (1) lab reports that never reach the physician; (2) clinical complaints relayed over the telephone that reach neither the physician nor the patient’s office record and (3) failure to aggressively schedule follow-up appointments upon receipt of lab reports reflecting significant values.

A lack of adequate documentation portends problems that extend well beyond patient care and risk management issues. Third-party payors, Medicaid and Medicare are redoubling their audit efforts. The only surefire way to challenge a accusations of upcoding, outright fraud (and the inevitable demands for repayment) is to provide documentation that supports one’s billing and coding. Software programs designed to generate complete clinical records that will support a physician’s coding are now readily available.

Indeed, the good news is that medical records may now be easily maintained in an electronic format and provide (1) instant access to patient information including: (1) physican and medication orders; (2) claims processing information; (3) automated checks for drug and allergy interactions; (4) clinical notes; (5) prescriptions; (6) scheduling and (7) mechanisms for sharing, viewing and correlating radiographs and lab values. Such systems will reduce the risk of medication errors and failure to diagnose conditions based upon a lack of communication or coordination of care.

If electronic records were the the way of the future, the future has arrived. In June 2005, legislation was introduced to fund and create health information technology superhighway replete with data about a patient’s medical history, clinical course and medication regimen that is readily available to hospital personnel, the treating physician and even, a covering physician. The legislation also provides federal grants to fund the lofty goals of designing the system and implementing it while assuring patient privacy.

Moreover, the cost of EMR capability may be underwrittwn, to a great extent, by hospitals, group practices donating to physician members and prescription drug plans. Recently, Office of the Inspector General for the U.S. Department of Health and Human Services, issued its final rules concerning the donation of technology for electronic prescription and health records. Previously, the Government considered such arrangements to be potential violations of the federal Anti-Kickback Law or the Stark Law. However, a new “safe harbor” was created to protect arrangements with regard to technology donated for e-Prescribing and EMR. These new rules now allow certain technology and services to be donated from qualified donors, such as hospitals, to physicians. Of course, before a physician accepts any such donation, he or she should seek counsel to determine whether the arrangement meets the requirements for the donation to fit within the applicable safe harbor and/or exception. Finally, the arrangement will only be protected if fifteen percent of the cost is borne by the physician and, the donor may not shift the costs for any donated items or services to any federal health care program.

Electronic records, like paper records are deemed to be the property of the physician and he or she remains responsible for both maintaining the records and providing them to the patients and other providers upon request. This obligation to maintain records extends beyond clinical notes and includes films and tracings from diagnostic imaging procedures such as x-ray, CT, PET, MRI, ultrasound, etc. The patient, however, according to HIPAA, owns the information contained within the record and has a right to view the originals and obtain copies.

In the final analysis, EMR has arrived and by embracing it, at what may prove to be a minimal cost, may lead to improvements in the quality of car, minimizing the risk of litigation and increasing the bottom line.