Although the EHR is a beneficial tool for care coordination, it also may be a source for a malpractice issue.
Here are eight legal risks hidden in EHRs, according to a Medscape report.
1. If the EHR malfunctions, hospitals are to blame. Even if an EHR is misbehaving due to a bug or a design flaw, the hospital and/or physicians shoulder the responsibility because physicians in the practice are understood to know how to use the system, according to the article. HIPAA indicates the provider, not the vendor, is responsible for maintaining the patient medical record. Providers should immediately contact vendors to fix any issues, as well as keep documentation of communication with vendors to have records of trying to fix any errors.
2. Don't copy and paste. Copy and paste features can lead physicians into a number of issues. First, the information being transferred may be incorrect or outdated. The information can also clutter the patient record making it difficult to find important facts. "Large blocks of text repeatedly copied in the EHR are easily revealed by a plaintiff attorney in the discovery phase of a malpractice suit," reads the report. "It suggests that you were not really engaged in patient care and may cast doubt on anything else you may say in your defense."
3. Sharing passwords eliminates physician identities. According to the report, small practices are particularly vulnerable to such attacks as physicians often share passwords in such settings. However, doing so makes it difficult to identify who did what in the EHR. The EHR records all documentation activity, including when someone accesses and edits the records, as well as who did it. If physicians share a password that is registered to one person, it can appear as though that one person was changing all the patient records, according to the report. If physicians are sharing a password, it is difficult to determine who has done what, according to the report.
4. Ignoring clinical alerts doesn't look good in court. "Clinical decision support…is an EHR's most annoying feature as many doctors see it," according to the report. "They bridle at a computer telling them how to practice medicine, and the unending stream of alerts, many unnecessary, can be irritating." However, if an EHR records a physician consistently ignoring or overriding alerts and a patient suffers an adverse event, the physician could face liability in court because one of those alerts could have prevented a negative outcome, according to the report.
5. EHR standardization can be cause for harm. If a physician uses an EHR in a nonstandard way, such as indicating allergies in a note instead of by checking a certain box, the EHR will not track and/or recognize the input data. If the EHR can't track that data, it can't alert providers about certain cautions when necessary, according to the report. In the case of a lawsuit, a plaintiff can then ask whether the physician was using the system as it was intended to be used, according to the report.
6. EHRs may raise the level of care, but also make it more difficult to reach that level. Some argue that the EHR has increased the level of care, due to factors including meaningful use incentives. Not only has the EHR increased the level of care, but it has also become a tool to help meet that higher standard, according to the report. However, if physicians do not use the EHR to elevate care standards, they could be charged with substandard care. The report offers the example of drug and allergy interactions. Meaningful use incentives require physicians to check drug-allergy interactions of patients. Now with so many physicians doing so, that could be argued as an elevated level of care, becoming the new normal. If a physician doesn't also meet that level and check all those interactions, he or she could face issues in court.
7. Input errors have legal consequences. A study analyzing the Department of Veterans Affairs' EHR found 84 percent of notes on patient records contained a documentation error, and there were an average of 7.8 mistakes per patient. Such mistakes can happen under time crunches, when physicians don't offer supporting documentation for services performed, when physicians don't sign notes and even through autofill technology, according to the report. Physicians can be questioned if they had a full picture of a patient's condition since information may be missing or incorrect.
8. Patients are upset about depersonalization. Having to input information into EHRs can take away from interaction with patients, and possibly even lower-quality care, according to the report. If patients are unsatisfied, they are more likely to sue.
More articles on EHRs:
5 statistics on EHR adoption over the past 5 years
Chuck Lauer: EHRs seem like more of a problem than a solution
Payment rules for non-MU eligible care facilities seek to tie reimbursement to EHR use