Do Electronic Records Lead to More Medical Malpractice?

Do electronic records decrease malpractice?

Electronic medical records are all the rage. The potential benefits are not hard to see. Doctors can access a patient’s entire medical history from one chart. Allergic reaction to penacilin in 2003? Got it. Equally helpful, the system has built-in alerts of the potential dangers of drugs interactions.

It is a bipartisan idea in Washington, D.C., a town where bipartisan ideas are as common as Indianapolis Colts wins without Peyton Manning. President George Bush first championed Health Information Technology as a national priority for the U.S. in 2004. President Obama then threw $36 billion in stimulus money from the American Recovery and Reinvestment Act (ARRA) – earmarked to facilitate implementation of electronic health records (EHRs) – just what the doctor ordered to speed things up. Since then, the EHR implementation machine has churned away in an effort to improve efficiency in patient care. By broadening access to patient information, creating a consistent system for reminders and alerts, offering important safety features such as clinical decision-making support, and automating prescription filling and re-filling, EHRs have the potential to change the landscape of medicine in the U.S. and across the world.

In addition to their direct patient and physician benefits, EMRs are also touted as a means of reducing medical malpractice claims against doctors. Recently, however, a number of malpractice claims have been filed against providers using EHRs; claims directly and indirectly related to the use of EHRs in patient care. Either medical malpractice lawyers will sue over just about anyone or there is real cause for concern that we all should be thinking about. I suspect it is the latter. Medical malpractice insurers apparently agree and are considering increasing medical malpractice insurance premiums in order to offset the potential risks associated with the use of EHRs.

Unfortunately, the road to EHR implementation has not been smooth for many healthcare providers. The rush to meet federal deadlines for implementation milestones has resulted in numerous problems, as new and inexperienced vendors have entered the EHR market in an effort to capitalize on the growing industry. These vendors may offer substandard products with flaws in software design, and if not properly vetted, medical practices can quickly find themselves using an inferior EHR program with serious deficiencies. Even seasoned medical technology veterans such as General Electric have fessed up to software flaws that have interfered with data reporting. These technological problems can compromise not only EHR functionality, but also the security of patient health information. Furthermore, they have opened the door for new forms of medical liability, while failing to circumvent the medical liability risks they were envisioned to prevent.

A recent paper published by the Texas-based healthcare IT research and consulting firm AC Group calls for the federal government to put the brakes on its “Meaningful Use” incentive program. This program is offered by the Centers for Medicare and Medicaid Services, and provides financial incentives for healthcare providers that use certified EHR technologies in a meaningful way, such as to electronically submit a prescription to a pharmacy, or to exchange health information in order to improve the quality of care. In basic terms, providers must show that they are using certified EHR technology in ways that can be measured qualitatively and quantitatively. In its appeal to the government to slow the pace of the program, the AC Group charges that short implementation deadlines force software developers to sacrifice the quality of both products and trainings.

The authors of the white paper also point to the fact that EHRs tend to focus more heavily on capturing billing codes and are programmed too rigidly to capture normal, clinically-significant indicators from physician’s notes. Nuances related to laboratory data, patient medications, and family history may all be overlooked if the software is not adequately designed to obtain this information. By failing to capture critical patient information, EHRs can compromise patient care and safety, and unknowingly open the physician up to medical liability that may not have been present had they used traditional paper charts.

The New England Journal of Medicine has weighed in on the subject. In a November 2010 review article, the journal highlighted numerous medical malpractice risks associated with the use of EHRs, some of which include the following:

  • EHRs’ heavy reliance on clinical decision-making guidelines may inadvertently lead to physician deviation
  • Widespread use of EHRs may make them the standard of care, exposing those who utilize conventional paper charting systems to increased liability risks
  • Large room for error with multiple users entering data into EHRs
  • “Cut and paste” technique sets physicians up to omit important information and facilitate inaccuracies

Liability risk also increases as patients are able to gain increasing access to their own electronic health data. If in doing so they discover that their healthcare provider failed to follow a clinical treatment protocol embedded into the software program, they may be more inclined to pursue a malpractice claim. Under the old paper-based system, patients likely would not have had access to nearly as much information.

Finally, EHRs maintain detailed “metadata” files of every twist and turn that physicians – and others – take while entering information into the EHR. This includes not only listing the medications administered, procedures performed, and clinical guidelines followed, but also who entered and changed information, and when. Essentially, a metadata trail is created each time an individual enters the EHR system and makes a change. Each state has its own definition of EHRs, and these definitions may or may not include metadata as part of the official medical record. If metadata is included, it may open the physician up to greater vulnerability and risk.

So what does this all mean? Are electronic records fools’ gold? I don’t think so. But it is a complex, multifaceted issue and there are going to be a lot of kinks to iron out. And, yes, some of those kinks are going to lead to medical malpractice lawsuits even if it reduces claims in the long run.