March 31, 2016

Some Medical Staff members have asked to add the following disclaimer to their medical records:

Please note that this dictation was completed with computer voice?recognition software.  Quite often unanticipated grammatical, syntax, homophones, and other interpretive errors are inadvertently transcribed by the computer software.  Please disregard these errors.  Please excuse any errors that have escaped final proofreading.

Is this a good idea?

ANSWER:            No.  Such disclaimers probably increase a physician’s risk of liability.

This specific issue was addressed recently by WPS GHA, a Medicare contractor.  It provided the following guidance:

Disclaimers Used as Part of Physician’s Signature

WPS GHA has recently been informed of a new trend in medical record documentation – that of using some type of disclaimer.  Examples include the following:  ‘Due to possible errors in transcription, there may be errors in documentation’; ‘Due to voice recognition software, sound alike and misspelled words may be contained in the documentation’; and ‘I am not responsible for errors due to transcription.’ Providers are responsible for the medical record documentation.  Disclaimers such as those above do not remove that responsibility.  The provider should verify the information is complete and accurate prior to attaching his/her signature.[1]  (Emphasis added.)

We agree that a disclaimer will not shield a physician from liability for errors in the medical record.  It does not matter if the error is caused by voice recognition software or a transcriptionist.  The physician’s signature on the record is the physician’s confirmation that the information is accurate and complete.  A disclaimer cannot be used to evade that responsibility.

The guidance from WPS GHA makes clear that disclaimers cannot help physicians.  In fact, there is also reason to believe that such disclaimers will actually harm physicians.  If a disclaimer is used, an injured patient may claim in a malpractice suit that the physician was too busy to review the accuracy of the entry, or simply was unconcerned.

All health care professionals know that transcription errors in the medical record can harm patients.  This may explain why juries have no sympathy or tolerance for physicians who would attempt to use a disclaimer to avoid responsibility for closely reviewing the medical record before signing it.

Not only are juries offended by these disclaimers, but they offer an easy target for malpractice attorneys.  The following comment was posted on a message board regarding this issue:

I called some attorney contacts I have on BOTH sides of the courtroom (just to get THEIR take on the situation).  The defense attorneys I contacted DON’T want the disclaimer anywhere on the note.  The plaintiff attorneys I contacted LOVED the idea and then proceeded to tell me how they would ‘rip the author of those notes to shreds’ EVEN IF NO ERRORS WERE FOUND IN THE NOTE! They had some rather interesting approaches on how to discredit the author simply due to the presence of a disclaimer on a medical note.[2]