It's hard to deny the obvious upside to healthcare technology. E-prescribing software has all but eradicated errors related to handwriting interpretation, while EHRs are enabling greater continuity of care. Telemedicine has opened the door to virtual house calls for the elderly and chronically ill, and mobile devices like smartphones and laptops are putting patient data into the hands of providers where and when they need it. Indeed, medical technology has revolutionized the delivery of care.
But for all the problems it has helped to solve, it's also created some new ones related to liability risk. "I don't think doctors realize how big of a potential problem this is," says Mark Anderson, chief executive officer of AC Group, a healthcare technology advisory and research firm in Montgomery, Texas, which identified 42 areas in which EHRs are contributing to malpractice lawsuits. "Many of the shortcuts we are using to make the system work faster are resulting in an increased number of malpractice claims."
Electronic prescription software is among them, he says. Physicians who renew prescription refills with a single click, for example, as vendors like to promote, fail to review any new clinical entries made since the initial prescription was written, making them more likely to miss changes that could jeopardize their patients' health. At the same time, the vast majority of e-prescribing software available today does not link patient lab results with its medication alert system, which is designed to alert physicians to potentially harmful reactions to a prescription drug, says Anderson. A lab result that shows high levels of creatintine in the blood, for example, can indicate a decline in kidney function, making a handful of commonly prescribed medications unsafe to use. "There are numerous lawsuits on this issue right now," says Anderson.
EHR time stamps have also proven problematic in the courts. In most cases, each time you update a patient's record, your EHR makes a note of the date and time. Plaintiff's attorneys can demand that data as part of the discovery process in a malpractice case. "Most physicians do not understand the software that is available in their EHR and so they don't necessarily know what can be tracked if a malpractice case arises," says Robert Goodson, a partner with the Washington, D.C.-based law firm Wilson, Elser, Moskowitz, Edelman & Dicker. "We are seeing more and more comprehensive discovery requests made by plaintiff's lawyers to obtain data from EHRs."
Some doctors, he adds, wait until the end of the day to complete their patient notes all at once. "In the past with paper records no one could see when you made an entry in a patient file, but the plaintiff's attorney can now say, 'You see 30 patients a day right? How can you be certain that this is accurate if you recorded the note at the end of the day?'" says Goodson, noting EHRs are not themselves creating the malpractice event, but are contributing to the size of settlements. Likewise, if you update your notes after each exam, the time stamp reveals how long you spent per patient encounter. An abbreviated visit might be called into question on the defense stand.
According to Goodson, all practices using an EHR or considering purchasing one, should ask their vendors to explain the nuances of their software and the various ways it could potentially help or harm their practice.
The act of copying information electronically from a prior note or patient visit and pasting it into a new note (known as "cloning") can also land physicians in the legal hot seat. "This may result in irrelevant over-documentation, and the patient may appear to have more or less complex problems since the prior encounter," says David Troxel, medical director of The Doctors Company in Napa, Calif., a medical malpractice insurance company. "By substituting a word processor for the doctor's thoughtful review and analysis, the narrative documentation of daily events and the patient's progress may be lost, thereby compromising the record of the patient's course." The quality of notes and documentation may be further compromised, he says, by the use of automated templates.