Malpractice 'Discovery' Dangers in Your EHR

Vendor Says, "Not My Fault!"

One might think that a product defect or design flaw should be the responsibility of the vendor, and the doctor should be held harmless for those types of errors. But it doesn't work that way.

"The doctor can be held liable because most vendors' contracts (signed by the physician) essentially say, 'We do not practice medicine; it is up to the physician to make sure this EHR is being used correctly.' The practices have to understand what they're using and verify that the system is appropriately set up to document the care they provide."

"Basically, doctors can't view the EHR as a black box that is perfectly set up and everything about it works fine," says Sterling. "Doctors often say, 'We'll take it out of the box and use it, and figure out all the details later.' But they can't do that. People think the EHR is a standard product because other people are using it. But they don't know how the other people are using it."

In a trial, the doctor would be held responsible for product problems.

But just as scary, doctors could be held responsible for following vendor instructions. "I've seen situations in which the vendor tells doctors to do something, and doctors are relying on vendor and not doing their own proper analysis and design of the EHR that's tailored for their own practice," says Sterling. "The vendor is not the one responsible for maintaining the patient's medical record."

Bad News: You Need to Delve Into Technicalities

Most doctors are unprepared to explore the technical elements of working with an EHR. "Doctors have to understand what happens when you push the buttons," says Sterling. That means they have to take the time to work with the EHR and explore various screens and scenarios before they ever use it with a patient.

Given the potential malpractice dangers that EHRs can bring, how can doctors avoid putting themselves in a bind? Sterling gave these recommendations to make sure you won't get into trouble. They may be time-consuming, but they will help keep your practice safe.

  1. Don't view the EHR as a black box that works correctly, even if you follow the vendor's best practices. Assume that you need to understand everything that is happening, and evaluate whether it's working right for your purposes and in the way that you use the EHR.

  2. Do sufficient analysis of the product, and the design of the office workflow and processes, now that you are using the EHR. You need to maintain and check the process on a daily basis. Monitor the process to make sure you're properly maintaining patient records and the EHR. For example, all patient charts should be signed within a time frame dictated by the practice.

  3. Recognize that this is a big ongoing job, and account for it into your time allocation for your week. Swapping an EHR for paper charts is not a one-for-one switch; the EHR requires more time and maintenance in areas that do not exist in the paper chart world. For example, the practice may need to verify that patient orders are properly maintained and communicated. An EHR is a dynamic system, and things could go wrong or just work wrong; you need to monitor the performance of the EHR and your use of it.

  4. Document your selection process for your EHR. This will show that you did due diligence to pick the appropriate product. In a malpractice trial, if you've chosen an EHR system that does not provide the information you need in the way you want it, this will count against you as far as back as why you ultimately selected that system.

  5. Analyze, design, and plan to make sure you adequately vet the EHR itself and the setup you establish. Also document your training to show that you know how to use the system in a way that will accurately and properly document your services to and interactions with the patient.

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