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8/17/2011
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When EHRs Meet Malpractice Suits: New Concerns

Electronic health record data stores bring legal liability fears, logistical headaches for healthcare organizations, attorneys say.

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An electronic health record (EHR) is more than just an electronic representation of a paper chart. It is a legal representation of a patient's medical condition and treatment at a given point in time, one that could be admissible in court. And that could present a whole new set of challenges for healthcare organizations.

"There is no guide out there to walk people through all that changes with an EHR," Adam Greene, a Washington, D.C.-based partner in the law firm of Davis Wright Tremaine, said this week at the American Health Information Management Association (AHIMA) Legal EHR Summit in Chicago.

EHRs make patient information more readily accessible to far more people than any paper chart stashed away in a filing room. They also change how and to what extent medical professionals document patient encounters and add in safety-related features such as clinical decision support.

"There are all sorts of liability fears with all these improvements," Greene told InformationWeek Healthcare. The Health Insurance Portability and Accountability Act privacy and security rules require anyone that handles electronic healthcare data to keep an audit log of access to any personally identifiable information, and records have helped organizations catch employees taking unauthorized looks at patient records--sometimes also landing the organizations themselves in hot water.

Indeed, some worry that audit logs can reveal too much. "There are concerns by providers that access reports could be used in malpractice suits," Greene said.

In fact, such reports already are, according to Stacey Cischke, an attorney with Chicago firm Cassiday Schade who teaches a course in legal issues in e-health at Loyola University Chicago. "The scope of traditional discovery is expanded," Cischke said. "More and more courts are finding that metadata and access to the inner workings of the EHR system is relevant and discoverable."

The general public and even plaintiffs' attorneys do not always comprehend how EHRs work, Cischke added. Because there is so much to chart, physicians and nurses are rushed and things get missed. From the patient's perspective, all the doctor should have to do is click and check off boxes in a list, but, according to Cischke, physicians often are "overwhelmed" by time and economic pressures, and skip steps or simply forget to check some boxes. "The metadata will show this," Cischke said.

Cischke said she prepares clinicians for trial by making sure they understand what each piece of metadata means. Knowing when something happened then opens up questions of why the doctor took a certain action.

On the other hand, with an EHR, users can't "fudge" charts as they could with paper, since EHR systems generally won't allow any modifications after a physician signs off on the record of a patient encounter. But plaintiff's attorneys do not always consider this. "It's logistically challenging," Cischke said. It is hard for the layperson to understand individual records, flow sheets, and audit trails.

Thus, Cischke recommended that providers adopt a multidisciplinary approach to identifying potential lawsuits, and promote consistency in how they produce reports and respond to threatened legal action. Both in-house and outside counsel and staff need to learn how the EHR works and how to navigate through electronic records before they find out the hard way, after being sued.

"'Reasonably anticipate litigation' is the key buzz term in e-discovery," Cischke said, referring to legal discovery and search of electronic data. According to Cischke, healthcare providers can reasonably anticipate being sued in case of an unexpected negative outcome such as death if a patient or patient's relative brings the incident to the attention of an administrator or risk management department. The same goes for any request for medical records that comes from a law firm.

When there is a reasonable expectation of litigation, health IT staff have "earlier and sometimes intense involvement" to help preserve data with an EHR present, Cischke said. They also might have to testify in court to explain how the EHR works and the steps they have taken to preserve data.

Litigating is all about telling a story, according to Cischke, and juries tend to believe the story that can be backed up with more tangible evidence.

Complicating matters during litigation is that printouts from EHRs tend to be difficult to interpret, since they tend to look nothing like what appears on a computer screen. "The printed form is foreign to people who use electronic records," Cischke said. With a written chart, a doctor or nurse could easily say, "Yeah, that's my handwriting," she noted.

And because EHRs are new to so many people, case law is not well defined just yet. "Judges have wide latitude in discovery," Cischke said. She reported hearing of requests to mirror hard drives, an onerous task for an IT department that is not prepared to act as soon as there is a reasonable expectation of litigation.

Find out how health IT leaders are dealing with the industry's pain points, from allowing unfettered patient data access to sharing electronic records. Also in the new, all-digital issue of InformationWeek Healthcare: There needs to be better e-communication between technologists and clinicians. Download the issue now. (Free registration required.)

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