How will electronic health records change the legal landscape for physicians? Recent studies suggest they will indeed have an effect even if stakeholders are still unsure about how. And with such legal uncertainty, is investing in EHRs worth it?
Electronic health records, health information exchanges (HIEs) and electronic communications with patients all open a new door into malpractice claims and medical liability litigation. The question is whether EHRs will help providers defend against such claims or leave them more vulnerable — and the answer seems to be, they will do both.
Researchers reporting in the New England Journal of Medicine studied the legal issues associated with four core EHR functions: documentation of clinical findings, recording of test and imaging results, computerized physician-order entry, and clinical decision support. All four functions are required in various ways of providers who plan to participate in the EHR Incentive Program and follow meaningful use criteria.
“EHRs hold considerable promise for preventing harmful medical errors and associated malpractice claims,” the researchers wrote in their report, “Medical Malpractice Liability in the Age of Electronic Health Records.” “On the other hand, despite experts’ optimism, there is currently no evidence that the use of EHRs reduces diagnostic errors,” they wrote.
Beyond the initial learning curve of implementing them, training staff to use the system and overcoming any bugs in the process, EHRs still can present legal complications. At the heart of the issue is the trail of recorded information, also known as metadata. EHRs include time stamps on every interaction within the record; if there are gaps of time missing from those stamps, the validity of the record and standard of care might be hard to defend in court. Hospitals must be meticulous in providing information to defendants in a lawsuit.
Information exchanges present their own issues as well, which could lead to changes in the standard of care, according to the NEJM research. HIEs allow doctors access to medical records they didn’t previously have; and if they choose not to access other medical records during patient care, there might be a liability risk, the researchers said: “It is unclear whether courts would require physicians to routinely perform comprehensive reviews of external EHRs, but in cases in which a patient mentions a relevant piece of his or her medical history and the provider fails to review an easily accessible external EHR, liability could well result.”
Diligence, training, education and detailed record-keeping could help providers manage their risk as EHR adoption continues, the NEJM researchers said. “Although there is currently little research quantifying the risks and benefits with respect to liability, we are optimistic that they will ultimately weigh in favor of the implementation of EHRs.”