How Might the EHR Lead to Medical Malpractice Claims?

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.


A study released in October 2017 by The Doctors Company, a medical malpractice insurer, revealed a continuous increase in medical malpractice claims related to electronic health records (EHRs) over a ten-year period. Titled “Electronic Health Record Closed Claims Study: Navigating the Rising Risks of EHRs,” the study identifies several system factors that contributed to the malpractices claims under review, including:

  • Fragmented EHRs. An example of this factor would be if components of a patient encounter aren’t located together, such as lab and imaging results located in different places due to EHR design.
  • Lack of provider access to the EHR due to systems/technology failure. An example of this factor would be if lab/imaging feeder systems were down and unable to communicate with the EHR.
  • Failure/lack of electronic data routing. Example of this factor would be if lab/imaging results aren’t routed to all parties, if lab/MRI results are routed to the emergency department but not to the floor after admission, and if referrals not forwarded.
  • Insufficient scope/area for documentation. Examples of this factor would be if the EHR has only checkboxes with no free text space, or if drop-down menus don’t offer appropriate responses.
  • Failure/lack of alerts/alarms/clinical decision support. An example of this factor would be if the EHR has no alert to indicate that ordered test results haven’t been received.
  • Lack of integration of hospital EHR systems. Examples of this factor would be if the emergency department and hospital floor systems are not integrated, or if incompatibility causes an inability to access information from another EHR.
  • Failure to ensure EHR security. Examples of this factor would be lack of firewalls, encryption, and passwords to maintain medical record confidentiality.

The study also noted user factors that contributed to the claims under review. These factors included:

  • Hybrid records/EHR conversion issues. Examples of this factor would be inconsistency between written and electronic records due to incomplete data transfer, and information left off the active problem list.
  • Prepopulating/copy-and-paste. Prepopulation and copy-and-paste functions may cause inaccurate documentation, including discrepancy between free text and review of systems template, as well as the history and physical active problems list being carried forward without modification.
  • Incorrect information in the EHR. Examples of this factor include data entry errors, and incorrect data from another EHR system or a prior written record.
  • EHR-related user error other than data entry. An example of this factor would be failure to scan informed consent.
  • EHR training/education.
  • EHR/CPOE workarounds. An example of this factors would be when circumventing system rules may cause routing and queuing problems, such as bypass alarms/alerts.
  • EHR alert issues/user fatigue. An example of this factor would be bypassing, ignoring, or not responding to alerts.

The system and user factors described above (and which are examined in more detail in the full study report) should come as no surprise to health information professionals and AHIMA members. The system factors reflect problems associated with electronic records that include—among other things—access, integration, and data security. The same might be said for the user factors. As this study demonstrates, it is important for organizations to have best practice policies and procedures that are implemented and monitored on a consistent basis, as well as regular training. As part of efforts to maximize the benefits of EHRs, healthcare providers should remain vigilant to the risks that electronic systems can pose, including how they might become factors in litigation involving allegations of medical malpractice—and how those risks might be managed.

 

 

**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.

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