Malpractice Risk & EHRs — Should You Worry?

Implementation of EHRs requires tremendous investments of time, energy, and — of course — money. Many physicians and other healthcare professionals have raised concerns about whether the introduction of an EHR into clinical practice creates more malpractice risk than it reduces. On the positive side, here are some examples of features/functions that most people would expect to lower malpractice risk:

  • Documentation is more legible.
  • Structured data is searchable, making it easier for practices to be proactive and address gaps in care, missing reports, laboratory abnormalities, etc.
  • Intra-office communication can be facilitated through the use of secure messaging that becomes part of the clinical record when appropriate.
  • Electronic prescribing can help avoid allergic drug reactions, drug-drug interactions, and drug-food interactions.
  • Clinical decision support can provide evidence-based guidance to help assure appropriate diagnostic tests and interventions are considered and acted upon when clinically appropriate.

In 2008, Virapongse et al did a study published in the Archives of Internal Medicine that reported on the results of a survey comparing EHR use and reported paid malpractice claims in Massachusetts. The results were inconclusive, but there was a trend for physicians with EHRs to have fewer paid malpractice claims.

The New England Journal of Medicine published an article by Mangalmurti et al in November 2010 in which the authors make the case that the liability implications of EHRs are likely to vary over the EHR adoption cycle. The authors identify three phases of EHR usage and potential unique malpractice risks associated with each phase. There’s a great table in the article from which I’ve adapted the following (i.e. not all of these statements are verbatim from the article though the phases are).

During initial implementation:

  • Documentation gaps during the transition from paper to EHR could lead to incomplete records and potentially inappropriate recommendations.
  • New types of errors related to lack of training and incomplete use of features/functions designed to help avoid errors.
  • Errors by new users through incorrect or missing data entries (clinical staff are often asked to take on new responsibilities during EHR implementation often including entering data in advance of visits based on abstracting relevant information from the paper record).
  • Inconsistent use of EHRs could lead to documentation gaps and communication errors (the hybrid approach to using paper records and EHRs during the transition phase might lead to incomplete records in both locations; see this guidance on managing the transition from AHIMA).

As systems mature in place:

  • Secure email exchanges increases the number of encounters that could lead to malpractice claims potentially on the basis of offering advice without thorough investigation and examination, i.e. non visit-based encounters.
  • Failure to reply in a timely fashion to patient emails could raise questions of negligence.
  • Increasing documentation through the use of EHRs creates more discoverable evidence — including the metadata that provide information about information (e.g. data about the data such as timestamps, access records, etc.).
  • Temptation to use the copy/paste feature instead of taking new histories could result in incomplete records and the perpetuation of previous mistakes, which could affect clinical decision making (This has been called “clinical plagiarism”: see AHIMA post by Chris Dimick entitled, “Documentation Bad Habits; Shortcuts in Electronic Records Pose Risk”).
  • Information overload could result in clinicians missing data.
  • Departures from evidence-based guidelines and clinical decision support could be used by plaintiffs to support their case.

As EHRs and HIEs become widespread:

  • Improved access to clinical information through EHRs (and HIE) could create legal duties to act on the information.
  • Widespread use of clinical decision support could lead to the acceptance of these guidelines as the standard of care by plaintiff attorneys.
  • Failure to adopt and use EHRs could eventually become a deviation from the standard of care.

There are certainly other potential issues with EHRs and risk. Poorly designed interfaces, drop-down boxes, and pick lists that are difficult to click on accurately, multiple clicks to order a test, each of which could introduce an error… and so on. However, before the perception grows that EHRs are “malpractice magnets,” which create excessive medicolegal vulnerability for physicians and other healthcare professionals, it’s important to consider the risks of paper-based records. Some of the risks with paper are probably similar; some may be worse.

Which modality is riskier from the perspective of making wrong decisions about clinical care or creating unsafe situations for patients?

  • Hard-to-read handwritten records versus EHR notes?
  • Manually checking drug-drug interaction with a drug reference guide or a standalone software package, or automated alerts in an EHR (assuming the level of alert notification is set properly)?
  • Paper-based tracking of imaging tests and critical labs ordered, or order entry and tracking through EHRs?
  • Pulling paper charts to identify patients who might be taking a recalled medication, or EHR-based queries to identify patients on the specific recalled medication?
  • Waiting for patients with chronic conditions to schedule appointments in order to address evidence-based clinical recommendations, or proactively identifying patients who merit such interventions based on a report from the EHR?
  • Depending on a filing clerk to add faxed or mailed laboratory test results, consultation notes, and imaging results to the correct section and in the proper order of the paper chart, or electronically receiving structured laboratory tests, imaging reports, and potentially consultation notes through appropriate interfaces (see January 25, 2012, AmericanEHR blog post)?
  • Knowing a result ordered by another physician might be pertinent to clinical decision making but not being able to access it, or connecting to a health information exchange (HIE) in order to access information about patients ordered by other practices when appropriate?
  • Limiting patient access to information from their clinical record, or sharing (through a patient portal) access to their medical record (see article on OpenNotes in Annals of Internal Medicine and an earlier AmericanEHR blog post on the topic)?

Physicians and other healthcare professionals each have their own perception of risk. Whether EHRs increase or decrease, malpractice risk is uncertain. Plaintiff attorneys are going to test the limits of how much and what type of information can be gleaned from EHRs to support their cases. What defines the “legal record” in an electronic environment is a very complex subject. See these articles by HIMSS and AHIMA. Interestingly, the American Health Lawyers Association plans to study some of these issues as announced in a press release earlier this week. Here’s a quote from the release:

AHLA’s year-long research project, the first of its kind, will produce tools that healthcare providers can use to minimize electronic health record (EHR) related medical errors, including a checklist that will help identify such errors and best practices guidelines to help minimize the occurrence of EHR-related errors in the first place. In addition, the researchers will craft a list of “dashboard indicators” for use by governing bodies in their quality oversight.

So, should you worry? Of course — but perhaps no more than you would if you maintained a paper record, and perhaps less given some of the benefits of EHRs. Rather than be preoccupied with the potential for new or unrecognized medicolegal risks associated with EHRs, healthcare professionals should become familiar with the issues and focus on the following:

  • The selection of an EHR that best matches your practice needs.
  • A well-designed implementation plan when initially moving from paper to EHR records and an ongoing plan for optimization of EHR features over time.
  • Appropriate training for clinicians and staff to assure that the features/functions of the EHR are understood and used properly with a plan to supplement initial training when updates and/or new features are brought online.
  • Excellent documentation using the ability to bring forward older notes/templates sparingly.
  • Policies and procedures that guide clinicians and staff regarding the day-to-day operations of the practice including how the EHR is used to facilitate these processes.
  • Following appropriate evidence-based guidelines while taking into account patient-stated preferences and being sure to engage patients in informed decision-making.

It’s also important to remember that whether you have an EHR or paper records, malpractice risk is mitigated, in part, by fostering good communication with patients and having a well-organized practice. This 1997 article from JAMA concluded:

Compared with claims primary care physicians, no-claims primary care physicians used more statements of orientation (educating patients about what to expect and the flow of a visit), laughed and used humor more, and tended to use more facilitation (soliciting patients’ opinions, checking understanding, and encouraging patients to talk). No-claims primary care physicians spent longer in routine visits than claims primary care physicians (mean, 18.3 vs 15.0 minutes), and the length of the visit had an independent effect in predicting claims status.

What do you think are the medicolegal issues associated with EHRs? If you’ve transitioned from paper records to an EHR, are you more or less worried about malpractice risks? What have you done to improve your communication style with patients?

This post is the personal opinion of the author and does not necessarily reflect the official policy or position of the American College of Physicians (ACP). ACP does not endorse a specific EHR brand or product and ACP makes no representations, warranties, or assurances as to the accuracy or completeness of the information provided herein.


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