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Legal records lurking in EHRs add new wrinkle to malpractice lawsuits

Electronic health records platforms are leaving doctors exposed by making it hard to demonstrate what they did and why. Some providers are even settling malpractice suits and not because of guilt. Hospitals cannot ignore the issue anymore.
By Diana Manos

Jodi Daniel, partner with Crowell & Moring and former policy director at ONC, recommended that providers include legal risks associated with EHRs in risk mitigation strategies.

Chad Brouillard deals with the unsavory topic of medical malpractice lawsuits and the increasing complexity EHRs add to them everyday.

The attorney at Foster & Eldridge in Cambridge, Massachusetts defends physicians in malpractice suits and witnesses first-hand the hassle and uncertainty of EHRs as evidence in court.

When paper records were prolific, the problems that arose around gathering evidence pertained mostly to illegible notes and abbreviations that, when written, looked like other abbreviations, he said.

Not so with EHRs. Today’s problems arise when doctors accidently select the wrong drop-down on a menu, for example. In addition, print-outs of EHRs can be thousands of pages long. EHRs, after all, were architected to be purely-digital, not printed out on paper.

“What it boils down to, is there are no clear-cut standards for discovery or evidence,” Brouillard said.

Wait! What? The EHR as a legal record?
The American Health Information Management Association (AHIMA) defines the legal health record as a means of identifying “what information constitutes the official business record of an organization for evidentiary purposes.”

In layman’s terms: it’s what can be used as evidence in court — either in favor or against a doctor or provider organization.

Part of the problem, of course, is that the issue of the legal record has thus far taken a back seat in EHR implementations and policy discussions because there have been so many other issues taking precedence. Hint: meaningful use.

Another reason policymakers have backburnered the matter is the reality that physicians loathe the conversation because it requires simultaneously facing the issue of malpractice lawsuits.

EHRs leave doctors exposed
Administrators, healthcare attorneys, clinicians and executives are growing more and more frustrated, mad and even worse vulnerable, according to Kim Baldwin-Stried Reich, a member of the HL7 workgroup on legal EHRs and an expert witness in court on the matter.

EHRs aren’t easy to use, for one thing, and doctors don’t want to have to think about how they will have to use the records to defend themselves, for another.

“The EHR record is very difficult when it comes to court,” she added. “It’s very difficult for doctors to testify because the printout is not what they saw at the time they used the EHR to make their decisions.”

Jodi Daniel, a partner at the law firm of Crowell & Moring in Washington, DC and former policy director for the Office of the National Coordinator for Health Information Technology said she’s anecdotally heard about physicians settling malpractice lawsuits, not because they were guilty, but because they couldn’t use the EHR to prove that the decision they made was based on the information available to them at the time.

“They couldn’t demonstrate what they did and why they did it,” Daniel said. “They were forced to settle to make the problem go away.”

Now is the time to plan
The legal record that EHRs house, however inadvertently, is not something doctors or hospital executives can ignore any longer.

AHIMA recommends establishing a policy around a legal record, as does HL7’s Reich.

Lydia Washington, senior director of HIM Practice Excellence at AHIMA, said there’s nothing fool-proof for protecting physicians if they are asked to defend their decisions in court via an EHR, but having a policy in place as a healthcare practice or organization can help to minimize problems that could occur.

“Preparing in advance for the risks and the problems the might happen — even though you don’t want those problems to happen — is just a smart thing to do,” Daniel agreed. “It’s a risk mitigation strategy.”

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