EHR and Malpractice Lawsuits

Long time reader Carl recently pointed me to this excellent AHIMA article on EHR and Malpractice Lawsuits. It’s first section sums up the current state of EHR and lawsuits quite well:

Medical records are a vital part of any healthcare lawsuit because they document what happened during treatment. Paper medical records are relatively simple aspects of litigation. HIM staff pull the requested chart, track down additional information as necessary, and sometimes provide a deposition on the record’s accuracy.

The process is far more complex with an EHR. The record of a patient’s care that a clinician views on screen may not exist in that form anywhere else. When the information is taken out of the system and submitted into legal proceedings, the court has a very different view—one that often confuses the proceedings and, in the worst instances, raises suspicions about the record’s validity.

The challenges stem from the design of the systems, which were built for care—not court. If the provider struggles in providing documentation, a trial involving malpractice can easily shift its focus from an examination of care to a fault-finding mission with the recordkeeping system. At other times, the provider’s inability to put forward the information in a comprehensible format may raise suspicions that it is missing, withholding, or obscuring information.

I’d probably modify the sentence that says that EHR’s were “built for care-not court” to say that EHR’s were “built for billing-not court”, but the idea is still the same. The big issues for EHR in lawsuits is that there’s no really good precedent for how an EHR will be treated in court. We’re so early in the process of legal cases that use EHR documentation, that we just don’t know how the courts are going to deal with EHR documentation.

Plus, when you consider that there are 300+ EHR companies out there, I’m not sure that a legal case with one EHR software is going to be applied the same way to the other EHR software. Each EHR displays data differently. Each EHR audits users differently. Each EHR stores data differently. So, I expect that each EHR will be looked at in a different way.

The AHIMA article linked above is a good read for those interested in this topic and points out a lot of other issues that could face an HIM staff that’s dealing with a case involving documentation in an EHR. Although, one of the overriding messages is that HIM staff and healthcare organizations are going to need an expert of their EHR involved in the process. In fact, I can see many HIM departments getting trained up on EHR in order to fulfill this need.

What I also see coming is a new group of EHR expert witnesses. Again, I think that these expert witnesses will have to have specific knowledge of a particular EHR to be really effective. I’m sure they’ll come from the ranks of EHR consultants, former EHR employees, and some EHR users. Considering the millions of dollars on the line in these malpractice cases, these EHR expert witnesses stand to make a lot of money.

I don’t want to make it all sound doom and gloom. I expect that there will be many cases involving EHR where a doctor or institution is covered better by an EHR than they were in the paper world. This will be even more true as EHR vendors continue to shore up their EHR audit logs and processes. There’s new legal risks with EHR, but there are also old risks that are removed by using an EHR. We just need to make sure we’re ready for the new risks.

About the author

John Lynn

John Lynn

John Lynn is the Founder of the HealthcareScene.com, a network of leading Healthcare IT resources. The flagship blog, Healthcare IT Today, contains over 13,000 articles with over half of the articles written by John. These EMR and Healthcare IT related articles have been viewed over 20 million times.

John manages Healthcare IT Central, the leading career Health IT job board. He also organizes the first of its kind conference and community focused on healthcare marketing, Healthcare and IT Marketing Conference, and a healthcare IT conference, EXPO.health, focused on practical healthcare IT innovation. John is an advisor to multiple healthcare IT companies. John is highly involved in social media, and in addition to his blogs can be found on Twitter: @techguy.

3 Comments

  • John,
    This reference is not the current state of EHR and lawsuits; it is dated Sept 2010 and talks of the challenge of the newness of EHR. Have you checked with newer sources to see if, now that providers, lawyers, judges and juries have more experience with reproducing, introducing, and examining EHR, it is now less challenging to obtain records with EHR? IT must not be as difficult now as all of the 2012 sources I read conclude that implementing EHRs may reduce malpractice claims. “Electronic records may cut down on risk factors for errors and resultant malpractice claims, such as poor communication among providers, difficulty getting patient information in a timely manner, unsafe prescribing practices, and poor adherence to clinical guidelines… The documentation in EHRs may also improve the likelihood of successful defense against suits.” http://www.medpagetoday.com/PracticeManagement/Medicolegal/33466

  • From a physician’s viewpoint, EHRs will never make defending a malpractice threat easier. Until now, a doctor defendant basically has to review a single chart and be prepared to defend his or her own notes in court. Many EHRs have auto-fill and other “integrated” functionalities that may surprise the doctor when confronted with the plaintiff’s digital record. Also, malpractice lawyers tell clients never to alter anything in the written record or it will appear self-serving. What are hospitals thinking when they adopt the newly popular text messaging services which promote themselves as self-destructing when read? An order for the wrong medicine or test? A culpable response to a nurse’s warning? The wrong leg or wrong patient? Malpractice lawyers will have a “field day” with messaging that’s so secure it leaves no trace. Like writing in charts with disappearing ink.

  • @Beverly – 2 years hasn’t matured the EHR industry much. I actually just had a conversation with an attorney who complained that medical office often send the entire patient record vs. ONLY what was requested.
    My view on this is because EHR aren’t designed to print…very easily.

    @Doc Fox – You are correct, now that each doc has “everything” it may complicate things. Especially when you go from one EHR to the HIE to another EHR…is it really keeping track of which doc did what??
    Auto-Fill – I thought that was “outlawed” years ago.
    Yes, EHRs with the integrated medicine lookup, who is responsible for the mistake?

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