October 24, 2017

Medical Record Integrity: Fraud, Human, or Technology Errors?

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Electronic medical record (EMR) technology offers both advantages and pitfalls, but EMR errors must be investigated nonetheless.

EDITOR’S NOTE: In this article Dr. John Irwin, a guest on last week’s Talk-Ten-Tuesdays broadcast, responds to “Robert,” a listener who reported that in reviewing his electronic medical record (EMR) for a recent hospital visit, the entire physical exam was counterfeit – no exam was performed.

Over the past 20 years, we have seen an ever-increasing intensification of payment enforcement activity, with medical record audits, repayment claims, and even criminal charges and penalties. I have had clients who were forced to repay literally millions of dollars because of questionable records. Some have even been sentenced to federal prison because of bad record-keeping. We can’t yet say whether “Robert’s” medical record was created as the result of intentional fraud or by human or technological error. But it certainly needs to be investigated.

The amount of medical record documentation that is now required is an order of magnitude greater than it was 20 years ago, and with the advent of electronic medical records, new technology has brought both benefits and dangers. The benefits, of course, are much greater quantities of data. But this also leads to data mining by enforcement agencies and brings the temptation of letting the speed and convenience of a computer handle the recordkeeping, namely by either simple copy-forwarding routines or cloning medical records.

For the purposes of this issue, I would think that there are two steps for compliance. First, a conversation with the author of the note is necessary. I think it is only fair to let the author explain and perhaps defend the record, but before that, I would seek the patient's permission to disclose the allegation. Since this is an emergency room situation, wherein the patient-physician relationship is usually episodic, the patient may not mind having his or her complaint disclosed to the care provider.

On the other hand, if it were an ongoing physician-patient relationship, the patient might understandably not want the allegation revealed to the physician – who that patient may have to see next month. Simply alerting the author to the fact that his or her records are suspect might be enough to straighten things out and prevent future recurrences.

However, at the same time I would also want to review some of this author’s other medical records, say, 15 or 20 charts, and I would be looking for a couple of different things. First and foremost, I’d ask the question: is every note the same? If so, of course, this would not be a realistic representation of patients. Patients don't all have the same heartbeat, abdominal exam, etc.

The second thing I'd be looking for is clinical context. If a patient comes in with the simple problem, you don't need a 10-point physical examination to deal with it, so if you see those kinds of excessive notes in the chart, then that alone is suspect.

This is the kind of thing that auditors are looking for, and unfortunately, they do often find it. Sometimes these records are created accidentally by the push of a button, and the author doesn't even realize it since he or she is under such pressure to work quickly. Sometimes, however, it’s intentional, and when that happens, not only the author but the institution can be at great legal risk.
John R. Irwin, AB, JD, BS, MD

John R. Irwin, AB, JD, BS, MD is a lawyer and a physician who has spent his career practicing healthcare law for more than 40 years and general medicine for more than 30 years. He represents clients across the country.

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