Is your scribe raising your risk of a malpractice lawsuit?

September 1, 2017

Brianne Goodwin, JD, RNConsider the following: You enter the exam room where your next patient sits gowned on the exam table. Your medical assistant has opened the patient’s electronic medical record (EMR). Next, you introduce your scribe, and indicate to the patient that the scribe will be documenting today’s visit so that you can pay closer attention to the patient and what he has to say.

Brianne Goodwin, JD, RNConsider the following: You enter the exam room where your next patient sits gowned on the exam table. Your medical assistant has opened the patient’s electronic medical record (EMR). Next, you introduce your scribe, and indicate to the patient that the scribe will be documenting today’s visit so that you can pay closer attention to the patient and what he has to say.

About 18 months later, the attorney representing your former patient is reviewing the record you, in conjunction with the scribe, have furnished after receiving the appropriate HIPAA release. Although you think you were well served with your EMR and your scribe, the attorney has a plan to show the record is fraught with error, which coincidentally is supporting the patient’s claim of injury.

How could this have happened? You thought scribes were supposed to bolster the physician-patient relationship, improve patient satisfaction, and avoid your having to become facile with all the ins and outs of the EMR.

Field minimally regulated

Medical scribes are the fastest growing medical field, with the number of scribes doubling annually, and it is estimated that 100,000 will be employed by the year 2020 (bit.ly/Scribesincreasing). However, the field is minimally regulated and there are no requirements from an educational or background standpoint on who can be a scribe (bit.ly/ScribeFAQ). Scribes may be high school graduates or medical students, and are not required to be certified (bit.ly/Scribeinfo).

Also by Brianne Goodwin, JD, RN - Informed consent: A medicolegal guide for urologists

The Joint Commission (TJC) has offered the following guidance on the use of scribes: “A scribe is an unlicensed person hired to enter information into the EMR or chart at the direction of a physician or practitioner (Licensed Independent Practitioner, Advanced Practice Registered Nurse, or Physician Assistant).”

The Centers for Medicare & Medicaid Services agrees with this and the directive is that scribes may not act alone when documenting dictations or other activities determined by a physician (bit.ly/Scribesincreasing). TJC goes further and requires that all EMR entries are authenticated by a licensed practitioner (bit.ly/Scribeconcern). Given the prescriptive nature of this guidance from regulatory bodies, the role and function of a scribe may seem clear.

However, a study conducted by a large medical malpractice insurer showed otherwise. This study showed high variability in the tasks that scribes were performing (bit.ly/Scribeuse). For example, 11.3% of physicians identified signing physician notes as an appropriate activity for a scribe, and 15.3% agreed that a scribe could participate in decision-making. Almost 45% of physicians felt that a scribe could respond to a patient message, and nearly 65% felt that scribes could provide translation services.

This study, though based on a sample of just 335 respondents, shows that scribes are being used in capacities that extend much further than what TJC and CMS direct. At the end of the day, the physician is ultimately responsible for the medical record, not the scribe, so caution is urged in using scribes outside of the defined parameters (bit.ly/Scribeproscons).

Further caution must be taken when an office clinical assistant is used as a scribe. For one, the scribe and the clinical assistant should have different permissions and security in an EMR, thus two different logins. Using the same person as a scribe and a clinical assistant for one encounter leads to multiple episodes of logging in and out and therefore risks error in documentation. For these reasons, having one individual fill the role of scribe and clinical assistant during one encounter is not recommended (bit.ly/Scribepractices).

Next: Conduct proper background checks

 

Conduct proper background checks

Lastly, proper background checks and training of all hired scribes cannot be understated. As aforementioned, a scribe is only required to have a high school diploma. This level of education in a medical setting, particularly a highly specialized area such as urology, sets the bar low for documentation errors in the records, which ultimately belong to the physician. Training in the particular medical specialty or subspecialty that the scribe will be working in will not only reduce the likelihood of documentation errors, but it will save the physician time when he or she is reviewing all of the scribe’s documentation to authenticate the note.

Read: Transplanted kidney found to be cancerous; patient sues

Furthermore, some clinicians in training take on scribe roles to assist with their education, studies, and development prior to taking board exams. It is incumbent on the provider to ensure that the scribe is working as a scribe, not as a medical student or physician assistant in training. A case in Florida awarded over $200M to a plaintiff who was assessed by an unlicensed PA in an emergency department, and was represented as a scribe (bit.ly/Scribemalpractice).

Scribes absolutely bring positive attributes to the practices in which they work. Indeed, a 2010 study found that urologists were more satisfied during office hours when they had a scribe and they reported a decrease in difficulties with documentation (J Urol 2010; 184:258-62). However, in an area of medicine that remains the “Wild West” in terms of regulation, educational prerequisites, background, and training, it is in every physician’s best interest to choose scribes selectively, train them, and ensure the quality of their work. After all, there is no scribe malpractice, only professional malpractice, and the scribe is unlikely to have a day in court.

More Malpractice Consult:

Telephone triage can jeopardize patient safety, lead to litigation

Missed kidney cancer diagnosis leads to death, legal action

How surgical time-outs may (or may not) lower litigation risk

Subscribe to Urology Times to get monthly news from the leading news source for urologists.