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EHRs and Malpractice Liability

By January 20, 2011Commentary

The New England Journal of Medicine has an essay reflecting on the impact of electronic medical records and the potential for greater health information exchange on medical malpractice liability.  (NEJM Article) The authors hypothesize that initial use of EHRs may actually increase malpractice risks, partly because of risk of error increases as a new system starts to be used.    After this initial period, the systems might result in a reduction of risk.  The benefits from EHRs in regard to liability will come from more complete documentation, better access to information more quickly, improved communication among providers and use of guidelines and other decision support systems that help catch or prevent errors.

At the same time, more liability could accrue from inadequate training, failure to use the information in the systems, gaps between different systems and just errors in software.  In addition, using patient communication capabilities may run a risk of performing medical services without a full in-person exam of the patient, and may affect the patient’s perception of the physician’s responsiveness and other characteristics in ways that increase or decrease the likelihood of a suit.  Failure to adopt an EHR or to use it in certain ways may even change the standard of care to which doctors are held.

EHRs are touted as a boon to health care quality and as a cost-lowering approach, but the jury is still out on those claims.  Their ultimate effect on malpractice liability is also yet to be seen.  In addition to the malpractice concerns, other legal concerns relate to privacy and confidentiality, ownership of data and records, and the impact on Medicare, Medicaid and state fraud and abuse claims.  In general, information technology can greatly boost productivity and improve the accuracy and reliability of processes, but it can also have often unforeseen and unpleasant consequences, particularly in an area as complex as health care.

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