EHR systems create new legal risks

Key Points

Malpractice risk

The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 authorizes grants and incentives totaling an estimated $14 billion to $27 billion to promote providers' "meaningful use" of EHRs. In the excitement over such advances in health information technology, some of the potential risks associated with these systems have received less attention.

As with any new technology, the risk of error does increase during the initial EHR implementation phase, as providers move from their familiar system of charting to a much more comprehensive system. Medical errors and adverse events may result from individual mistakes in using EHRs (incorrectly entering information into the electronic record) or system-wide EHR failures or "bugs" that create their own problems (such as crashes that prevent access to crucial information). The interface between older paper and newer electronic records may also create documentation gaps or other problems that impact care.

As an illustration of such risks, one recent study in the New England Journal of Medicine showed a higher rate of failure to inform patients of abnormal test results in outpatient practices in which a hybrid of paper and electronic records was used than in practices in which either paper or electronic records alone were used. There is no reason to think that such problems would not occur in a dermatology office.

Minimizing errors

Effective training and tailoring of new systems to existing technology can minimize the incidence of such errors, and organizations that have sufficient resources can monitor problems after implementation and adjust systems to minimize the persistence of errors. But these measures may not prevent errors entirely, and system failures may recur long after implementation. Such a scenario would leave clinicians "practice blind" until functioning is restored.

At least one legal case suggests that providers have a duty to minimize such risks during the transition period. A federal court held that a hospital that switched from a paper to an electronic system for delivering test results had a duty to "implement a reasonable procedure during the transition phase" to ensure timely delivery of test results to doctors. The court did not elaborate on what requirements constitute a reasonable procedure, but it found that the hospital had, in fact, met its duty by establishing a training protocol for the period before all physicians had completed training on the new system (Smith v. United States, 119 F. Supp. 2ed 561 [D. S. C. 2000]).

Even after the early initial implementation stage, it is still unclear whether the use of EHRs is likely to increase or decrease malpractice liability. It should be noted that EHRs have frequently been touted for their potential to reduce liability, with some malpractice insurers even offering discounts to those who switch from paper records. One 2008 study published in the Archives of Internal Medicine showed that physicians who used EHRs reported a lower number of paid malpractice claims than did those who did not use EHRs. The problem is that EHR systems also create new legal risks.

The written word

Implementation of EHRs may affect the course of malpractice litigation by increasing the availability of documentation with which to defend or prove a malpractice claim. Unlike telephone conversations, e-mail creates a written record. To the extent that the use of EHRs facilitates the entry of more extensive notes, it too may bolster the written record.

Additionally, EHRs record all electronic transactions, from the input of orders to time stamps of clinical activity - although different EHR programs vary in their ability to produce reports of these data on demand. This information, termed metadata, provides a permanent electronic footprint that can be used to track physician activity. In some malpractice cases, the documentation within EHRs may establish a provider's culpability, whereas in others it may help when mounting a defense.

In one case, a patient with a catastrophic operative outcome sued his surgeon for negligence. Electronic data monitors from the operating room showed that there were more than 90 minutes of gaps in the anesthesia record. The legal inquiry turned to the anesthesiologist. The electronic records uncovered further discrepancies. Although in this particular case it was unclear whether errors were made in patient treatment, the collective weight of the EHR discrepancies became difficult to defend in court.

As the use of EHRs grows, failure to adopt an EHR system may constitute a deviation from the standard of care. Standard of care is generally defined in somewhat simple terms as to what is customary among physicians in the same specialty in similar settings. Once a critical mass of dermatologists adopts EHRs, others may need to follow. If Dr. EMR hadn't purchased an EHR system eventually, he may have been found to have deviated from the standard of care for his very non-purchase.

David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.