Medical liability will be a moving target as EHR systems evolve

CAMBRIDGE, Mass. -- Medical liability case law referencing IT systems is in scant supply for lawyers of both malpractice plaintiffs and defendants drawing up trial game plans. That will change, though, as the proliferation of systems such as electronic health records, clinical decision support and smartphone messaging expands across the U.S. health care system, Harvard School of Public Health professor and attorney Michelle M. Mello said at the World Congress 3rd Annual Leadership Summit on mHealth.

In a presentation, Mello outlined IT's effect on medical liability for hospitals. One particularly rough patch is during an EHR implementation. Consider how your hospital will use paper during a paper-to-electronic workflow transformation, especially during the transition phases. Current case law points to having multiple redundancies in communications for physicians to fall back on and planning for contingencies in case a system doesn't function as it should during its initial startup.

Let us know what you think about the video; email Don Fluckinger, Features Writer.


Read the full transcript from this video below:  

Medical liability will be a moving target as EHR systems evolve

There's questions about what happens in settings where there's not a complete switch to an electronic platform for delivery and care. Many physician practices, for example, will have some uptake of electronic technologies but nonetheless [cling in] important respects to their prior systems and patient records.

This inconsistency or dual approach to the documentation can create its own risk. For example, Lawrence [Casalino] at the University of Chicago did a study that tracks the clinician's failure to delivery clinically significant test results to their patients. He examined three different kinds of ambulatory care practices, practices that had only paper records, practices that had only electronic health records and practices that used both.

He found that while the use of electronic health records along can reduce the risk that patients won't receive clinically significant test results having both kind of systems in place was actually worst than having no electronic health technologies at all because of these gaps between the systems. Thoughtful design around implementation turns out to be very important in minimizing a risk that the move to electronic technologies in and of itself creates new opportunities to err and to hurt patients.

There rises the question of what the law will expect organizational providers along these lines. What does responsible implementation of these technologies mean? Unfortunately, the case all around this is extremely than it did at present. These technologies are so new that cases haven't arise and haven't had a chance to work their way through the judicial system in the way that results in written opinions that can give clear guidance about how judges will think about liability.

There is at least one case from a federal district court in South Carolina that suggested courts my began to recognize a legal duty to carry out implementation of these systems in a responsible way. For example, in this case, the Smith case, the court looked at what the hospital had to do during the period in which it's clinicians were still training on the new system, and error had occurred during that training period and the provider was sued, but he hospital itself was also sued for negligent implementations of these systems.

The court held that the hospital did have a duty to carry out this implementation plan in a responsible non-negligent way. It unhelpfully provided very little guidance as to what a responsible implementation plan would like, but said that in this case the hospital had met it's duty because it had provided some redundancies in the system. Specifically during the period in which all the clinicians had not yet trained on the system, it required all of its radiologists to phone test results directly to their providers just in the case the electronic transmission didn't hold up.

It also required that the hospital make it's system automatically print patient test results in two separate locations so that providers would have a heightened risk of receiving those results. That's an example of a plan that contemplates and anticipates errors happening in this implementation chasm and provides redundancies and backups systems so that the hospital is taking reasonable steps to ensure the implementation goes smoothly.

Overall, the implementation period then seems to present opportunities for heighten risk. Hopefully this doesn't dissuade people from adopting these technologies because as systems began to mature in place, the landscape again begins to change. We have still opportunities for errors to arise, but there are also new opportunities to prevent errors from happening.

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