Will Your EHR Land You In Court?

Legally, EHRs are double-edged swords: They protect clinicians from malpractice litigation but also put them at greater risk.

Paul Cerrato, Contributor

September 29, 2011

4 Min Read

If you've lived through the transition from paper to electronic health records, odds are you see EHRs as a mixed blessing. They offer faster access to critical clinical information but also create complexities never dreamt of in the paper world.

Add legal liability to that long list of complexities. Some legal experts are concerned that hospitals and private practices haven't fully prepared themselves for EHR-related lawsuits.

Healthcare providers face some of their most challenging problems during the initial EHR set up. Several studies have shown this is the point at which the patient care process often slows, and that can spell trouble.

Sandeep Mangalmurti, MD, JD, at NYU Langone Medical Center, and his colleagues point to a federal court ruling that said when a hospital switches from paper to electronic documentation, it has a duty to "implement a reasonable procedure during the transition phase" to make sure clinicians get test results back in a timely fashion. That sounds like another way of saying if there's a lag in the time it takes for patients to receive test results and that delay harms patients in some way, the provider may be held liable.

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Once an EHR is fully operational and running at peak efficiency, there are other issues. Many EHRs have built-in clinical decision support components that push out clinical guidelines. On the plus side, that probably means improved patient safety because more practitioners are following standards of care. Following clinical guidelines reduces the rate of medication errors, researchers have found. And better patient safety means less risk of a malpractice suit.

On the minus side of the equation: The fact that clinicians are routinely given these guidelines electronically means they may be held to a higher standard than colleagues who don't have such ready access. If a patient is injured after a doctor decided to ignore a guideline clearly posted in the e-record, it may be difficult for him to convince a jury he's not culpable.

And that brings up the issue of metadata. Unlike paper files, electronic health records don't just list all the medications given, procedure performed, and which guidelines were pushed out. The metadata embedded in the files provides a detailed trail of every step the clinician took--and when.

"Metadata changes everything," says attorney Stacey Cischke, speaking about EHRs and liability litigation at the 2011 Legal EHR Summit, held in August in Chicago. Each state has its own definition of an official EHR, and some have already decided whether to include metadata as part of the record.

Plaintiffs' lawyers also raise suspicions that it may be easier for medical personnel to alter an e-document to cover up a mistake than a paper record, Cischke says. But in reality, it's probably harder because any change to the e-record creates a metadata trail.

So once again, EHRs prove to be a two-edged sword. Metadata may refute a practitioner's claim that he gave medication X at a certain time. But it can also refute a plaintiff's claim that the doctor tampered with the record to hide his incompetence.

Cischke raises another thorny question: In the e-world, what kind of patient information should a facility be saving and for how long? Suppose your hospital doesn't save metadata as part of the patient's permanent record. Could a court challenge that decision in a civil case?

Federal case law suggests that hospitals may have an obligation to save more data then they currently do, Cischke says. She cites the example of a hospital that had been collecting telemetry monitor data on a child who subsequently died. The hospital policy when it used paper charts was to cut out a small slice of the paper strip per shift and paste it into the chart and then destroy the rest of the telemetry data within a short period of time. It carried that approach over to its electronic data retention policy.

In this particular case, the family sued the hospital after the child died. Based on the verdicts laid out in recent federal court cases, Cischke believes a court could have found that the hospital has a legal obligation to suspend its data destruction policy and save all the electronic data from the monitor once the death occurred, in anticipation of the possibility that it may be discoverable and requested by the plaintiff's lawyer.

When you look at all the benefits that EHRs bring, and weigh them against some of the challenges, it's obvious electronic health records can be a blessing and curse to IT managers and clinicians alike.

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.)

About the Author(s)

Paul Cerrato


Paul Cerrato has worked as a healthcare editor and writer for 30 years, including for InformationWeek Healthcare, Contemporary OBGYN, RN magazine and Advancing OBGYN, published by the Yale University School of Medicine. He has been extensively published in business and medical literature, including Business and Health and the Journal of the American Medical Association. He has also lectured at Columbia University's College of Physicians and Surgeons and Westchester Medical Center.

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