Electronic Health Records Increasingly Contribute to Malpractice Claims

Both the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH) sought in part to improve medical recordkeeping. Both had the effect of encouraging “the adoption and meaningful use of health information technology,” according to the U.S. Department of Health and Human Services.

Unfortunately, the push toward electronic health records (EHRs) has come with an unintended side effect: A rise in malpractice claims involving EHR use that contributed to patient injuries, which raises concerns about malpractice before and after EHR implementation.

An October 2017 study by The Doctors Company found that between 2007 and 2010, only two medical malpractice claims involving electronic health records were filed. Between July 2014 and December 2016, however, 66 such cases were filed.

Understanding the Rise in EHR-Related Malpractice Claims

A 2010 article in the New England Journal of Medicine explored four “core functionalities” of EHR systems and the malpractice liability risks most common to each.

Documenting Clinical Findings

As with conventional paper records, failures in charting, incomplete charting, or charting errors still occur and may continue to play a role in medical malpractice cases. One report by The Doctors Company studied the specific risks of “copy and paste” functionality in some EHR systems. System crashes or other bugs may also imperil accurate documentation of EHR findings. Finally, while the transition to a fully electronic health records system has already occurred in many clinical settings, issues with records “gaps” in long-term situations may still exist.

Recording Test and Imaging Results

While EHRs make it easier to record and transmit test and imaging results, they also place additional responsibilities on doctors, who are responsible for the medical information they can access. Additionally, metadata embedded in many EHR systems make it possible to establish whether a record was viewed, when, and by whom.

Entering Orders

Entering orders, prescriptions, and similar documentation into an EHR has become a widely-accepted practice; one report from The Doctors Company estimates that over 80 percent of office practices now use their EHRs for entering orders. However, the report also estimated that 10-15 percent of electronic orders contain errors, about 33 percent of which are potentially harmful. As with electronic test and imaging results, failure to act on information available in an electronic order system creates a potential opening for liability.

Supporting Clinical Decisions

EHRs offering Clinical Decision Support (CDS) capabilities must be certified for compliance with Meaningful Use requirements. However, because ultimate responsibility for content rests with the provider, use of CDS systems must be carefully considered: The contents of the CDS may or may not align with the provider’s or patient’s needs. In addition, some software vendor contracts may attempt to shift all liability for CDS use onto the physician, while some malpractice policies may exclude coverage for product liability or indemnification of third parties, including software vendors.

The most recent study from The Doctors Company examines 66 claims made between July 2014 and December 2016, and it compares them to the results of an earlier study examining claims made between 2007 and June 2014. Comparison of the two studies revealed the following patterns:

• “System errors” accounted for 50 percent of the errors identified in the latter study; “user errors” accounted for 58 percent. While system errors increased 8 percent between the two studies, user errors decreased by 6 percent.
• Hospital clinics and doctors’ offices are the most likely setting for EHR-related errors, even though the rate has trended downward slightly.
• Orthopedics, emergency medicine, and obstetrics/gynecology all saw increases in EHR-related errors, while internal medicine, hospital medicine, cardiology, and family medicine saw decreases.
• 32 percent of all allegations were diagnosis-related between July 2014 and 2016 – an increase from 27 percent between 2007 and June 2014.

The combination of potential system errors and potential user errors requires careful consideration of potential liability – as well as the potential evidentiary options.

Dealing With EHRs in Your Malpractice Case: Some Tips

When building a case involving claims of medical malpractice related to electronic health records, consider:

• What type of error(s) occurred? A system error, such as a lack of alerts or alarms, may raise differing questions of fault than a user error, such as failing to pay attention to an existing system alert or alarm. These considerations are particularly crucial when dealing with electronic health records for complex claims, where the stakes and intricacies are higher.
• What does the metadata show? EHR systems increasingly record metadata such as the date and time a record is viewed and by whom it was accessed. Examining the metadata can help you determine certain facts that may be essential to the case – such as whether or not a physician actually reviewed a set of lab results or the accuracy of an EHR transcript in documenting clinical interactions.
• Which experts might you need? Electronic health recordkeeping systems are complex, and even an administrator in charge of choosing and implementing a system may not fully understand its programming or functionality. A thorough understanding of the type of problem and how it occurred will help you tailor your expert search accordingly.
• How can you ensure a thorough review of medical records in a malpractice case involving electronic health records (EHRs)? To build a strong case, it's crucial to have a comprehensive review of the medical records. Our medical record review service gives your firm access to on-demand consultations with our team of physicians at any case stage.