Electronic Health Records Can Increase Malpractice Liability

Andrew Smith
Published: Thursday, Aug 06, 2015
Matthew Stevens

Matthew Stevens

The erroneous autocorrect, the restrictive dropdown menu, the deadly software glitch: anecdotal evidence of computer foul-ups abounds in the literature on electronic health records (EHRs) and medical malpractice awards.

It may be too early to say whether EHRs have increased or decreased liability for physicians as a whole, mostly because settlements lag so many years behind treatment, but some say the technology generally reduces total medical errors (though not as much as predicted) and has no effect on insurance rates.

At the level of the individual practice, however, EHRs can increase malpractice liability—if those practices fail to recognize the major risks associated with the technology and adopt policies that minimize those risks, experts interviewed for this article said.

The fundamental transparency of EHRs makes it harder to camouflage actual mistakes, they said. It also makes it harder to camouflage sloppy work habits or even to justify good work habits that can be made to look sloppy in court. Defending malpractice lawsuits, therefore, requires not only a commitment to good care but a commitment to the unimpeachable documentation of good care.

“EHR vendors initially promised better notes with less work, but the truth has largely been the opposite. A typical physician probably needs to spend an extra working hour every day to produce records with far more extraneous information but far less core content,” said James J. Stark, MD, founder of Stark Oncology Consulting, in Suffolk, Virginia.

“It is an added hour of the most tedious possible work. It generally produces no benefits to patient care, and it generates zero extra reimbursement, so there is a tremendous temptation to cut corners with copy-and-paste and other shortcuts. Physicians who want to avoid malpractice verdicts must resist that temptation. They must accept each day’s wasted hour as a cost of doing business. Those who don’t can rest assured that lawyers will eventually tear their records apart, creating the appearance of malpractice even in the absence of actual malpractice.”

While the logic of that advice is clear, doctors, nurses, and administrators, at some point, may become so overwhelmed with professional or personal obligations that they do begin to cut corners.

Practices, therefore, must create specific policies concerning the record-keeping obligations and implement safeguards that prevent workers from shirking those obligations, experts said. Good software can certainly help. It can, for example, send out alerts when users fail to do the bare minimum, but it still takes humans to distinguish good records from the shoddy notes that can endanger a practice.

Audits Help With Troubleshooting and Training

The Oncology Institute of Hope & Innovation, an independent practice with a dozen offices in and around Los Angeles, conducts regular audits of patient records. Audits are time consuming, but they go faster with EHRs than with paper records that are stored off-site, and they minimize the risk of problems related to either lawsuits or billing.

“It’s rare to find a problem, but the auditing process is still valuable for a number of reasons,” said Matthew Stevens, the Oncology Institute’s General Counsel and Compliance Officer. “It allows us to evaluate how well we’re training people to use the software and to make improvements. It also allows us to find problems before they come up in lawsuits or billing disputes and, quite often, to correct them. Finally, it gives everyone a strong incentive to be diligent about keeping the sort of good records that impress auditors.”

Bobbie Sprader, JD

Bobbie Sprader, JD

Early EHR advocates predicted that system users would require much less oversight by administrators and one another. They said smart software would automatically force users to keep good records (or automatically warn administrators in the event of failure), and thus reduce malpractice awards by making poor record keeping nearly impossible.

Early EHR advocates said that software would eliminate a wide range of errors that were possible with paper records, but many of their predictions have yet to come true. EHR usage is generally associated with fewer medical errors, but many mistakes that programmers promised to make “impossible” still happen.

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