EMRs And Malpractice Liability: Some Questions

If things go as planned,  EMRs will prevent a multitude of medical errors from happening.  They’ll make sure patients don’t get the wrong drug or dose, help avoid interactions, alert clinical staff to key issues that emerge in real time from monitoring devices and more.  The sky is pretty much the limit here.

The thing is, who will be judged responsible when something goes wrong — and it’s the EMR’s “fault”?  For example:

*  What if the EMR somehow sends along data on the wrong patient (a possibility given the massive amount of systems integration issues involved in presenting the data)?  If the patient is harmed, is the doctor liable?

*  If a doctor doesn’t  fully understand the EMR interface, and records that a patient who’s violently allergic to a drug is not, who’s responsible if the patient gets that drug?  The doctor? The intern who relies on that record? The specialist called in to consult on the case and gets bad information? No one?

* What if a physician fully documents a patient’s status, correctly, but somehow the record gets altered by another user — and a patient  is harmed?  Is the second user responsible?  The IT department? The doctor?

These aren’t trivial questions, but I’m betting med mal insurers haven’t a clue how to handle them, much less physicians. I’m fully  expecting the first big malpractice case involving an EMR to surface shortly.   It’ll be a nightmare.

About the author

Anne Zieger

Anne Zieger

Anne Zieger is a healthcare journalist who has written about the industry for 30 years. Her work has appeared in all of the leading healthcare industry publications, and she's served as editor in chief of several healthcare B2B sites.

6 Comments

  • I suspect that any problems that arise will be the end user’s fault, but of course, they will try to blame the EMR. The burden of proof, however, will remain on the end user. When we fired our first EMR system, there were contract clauses that prevented us from holding that company responsible for any malpractice issues, regardless of cause, and prevented us from mentioning their name in any negative way (gag order). Someone has to put tight leash laws on these vendors if you ask me. If it is found to be the vendor’s fault when a patient is harmed, then they should pay the damages.

  • I agree that EHR Vendors have to stand behind their product in the event of a malfunction resulting in harm, however unintended it may be, to the patient/s.
    Yes; EHRs are complex with multitude of interfaces, multiple labs, multiple MRI Centers, Hospitals, eRx exchanges and much more.
    Enable Healthcare as a company owns up to its responsibilities and like many other EHR vendors out there, has been focused on functionalities and getting them right/accurate. This needs to accomplished prior to the sexiness of usability and other fancy stuff such as being able to access through multiple devices and multitude of operating systems including IPAD, Android, RIM Pad and so on.
    This is a valid point by John and it can only be addressed by prioritizing the requirements. These are much greater priorities than the need for an EHR solution to run on fancy devices such as IPAD, IPHONE or ANDROID Phone…………..

  • The doctor and/or medical group (end user) will be held responsible. Claims have already occurred, and that is the trend. The view is that an EMR is like any other tool – it is the responsibility of the person(s) using the tool. For this reason, it is critical that all medical professional users of an EMR understand it, and use it in a consistent manner.

    Using the drug interaction outlined above, all users would likely be named as defendants – leaving the matter for the courts to resolve.

    The situation with the alteration of the records is more complex, and would depend on documentation of the original record. The first user would need to prove that he/she input a correct record, and the second must prove they were not the cause of the alteration.

    These problems are more complex than those associated with a paper record; however with proper evaluation, design and training both prior to and after implementation, medical groups can mitigate the risks.

  • Great post and comments. A lot of our docs have been nervous about this risk and unsure of legal implications with utilizing EHRs.

  • The web based systems that are offered by ABSRx, have the capability of documenting who, when, and what was changed on a document, through password access. And, certain employees can be set to have access but only to the areas that are necessary for that employee to have access to. Therefore documentation of who did what wrong when, really is not a problem, as it is easy to determine with password access.

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