Will EHRs Attract or Repel Bloodsuckers?

Relatively little attention has been paid to the possibile increase of medico-legal liability that could come with EHR adoption.

With all of the talk about the tremendous benefits of EHRs, relatively little attention has been paid to a potential downside—the possibility of an increase in medico-legal liability. A recent NEJM article pondered some scenarios in which the implementation of EHRs could open the users up to malpractice liability. I would like to review some of these considerations, and add a few of my own to this hidden cost of EHR implementation.

First, some term definitions are in order to be able to make appropriate inferences.

A “basic” EHR has the functionality of recording patient demographics and ability to retrieve clinical data, such as lab and radiology reports. These systems may have basic computerized provider order entry (CPOE), such as medication ordering with drug interaction and patient allergy checking. Latest figures (2008 and 2009 respectively) showed 11% of hospitals and 21 % of outpatient clinics were using EHRs at this level.

A “comprehensive” EHR has the above functions plus more comprehensive CPOE capability and clinical-decision support functionality. This may take the form of integration with practice guidelines and clinical reminders. Only 2% of hospitals and 6% of practices were found to be using such systems.

The “meaningful use” of EHRs is being encouraged by the federal government to improve the quality of medical care, and insurance companies may even offer reductions in malpractice premiums to physicians who are using an EHR. More complete documentation, adherence to best practice guidelines, and avoidance of medication errors would all seem to have only the effect of reducing liability. So where are the envisioned pitfalls?

The implementation phase of such complex systems may result in multiple errors. This is especially true in the hospital setting. With untrained and inexperienced end users, critical information may not be communicated properly, resulting in medication errors, labs and x-rays not being completed properly, etc. In fact, there are some reports of increased hospital mortality with the transition to new EHR systems. There is a legal precedent requiring that procedures be in place to anticipate these difficulties to demonstrate an attempt to mitigate implementation difficulties.

The NEJM article reports the potential danger that access to more data may have on evaluating patients. The ready availability of previous work-ups provides a temptation to “cut and paste” items from a PMH or perhaps an inaccurate medication list. The theory is that if the records contain an inaccuracy, with this technology, the potential for that information to “go viral” is increased. My feeling is that this practice will only be done by lesser-quality physicians who probably would have made errors of omission even without this temptation to “cut corners.”

As you document your encounter in the EHR, not only is the specific information recorded, but the time and identity of the user get recorded. This is referred to as metadata, and unlike some portions of the EHR, this information is discoverable. Therefore, lawyers will have access to information much more readily because of this, which is never a good thing (for us).

Not discussed in the NEJMarticle are the effects of the meaningful use requirements to qualify for ARRA incentive funds. One of the “menu” items requires that lab and X-ray reports must be available to at least 10% of patients within four working days of receiving this information from the performing facility. In addition, patients must be given a clinical summary of their visit or have access to basic clinical information. Many EHRs are incorporating “patient portals” that enable the practice to give patients access to selected portions of their records. The potential disaster this could create is unimaginable to the non-practicing bureaucrats who approved such a measure. Patients simply lack the medical sophistication needed to adequately interpret such information and the idea of the resulting deluge of (non-reimbursed) phone calls is frightening. The four-day time restriction places a tremendous burden on a practice to be hypervigilant to any results received to avoid the increased liability. For practices adopting the strategy of avoiding EHRs so they will not have this burden, they may find themselves defending the lack of EHR since it will become the standard of care at some time.

Finally, the integration of clinical guidelines into the EHR may represent a double-edged sword. On the one hand, if you adhere to the guidelines, you may avoid some expert questioning your clinical rationale. On the other hand, even if there are sound reasons for overriding the guideline-recommended action, the burden of proof may fall to the clinician to convince judges and juries that those reasons represented appropriate clinical behavior.

So, in the brave new world of electronic records and health information exchanges, there are sure to be new medical and legal standards that evolve with the new technology. My jaded and pessimistic outlook predicts that all of this will not work in the physician’s favor in the legal arena.

For more on the increased costs of medical liability insurance to be potentially caused by EHRs, check out “2010: Medical Professional Liability in a Changing Health Care Environment - The New Story Unfolds,” a new report from Conning, and “e-Records Make Insurers Jittery,” a recent article on the report from Nextgov.