COMMENTARY

EHR Malpractice Risks; Hospital Liability Claims Rise; More

Wayne J. Guglielmo, MA

Disclosures

November 12, 2014

In This Article

EHRs Can Be 'Sword or Shield,' Defense Attorneys Say

Electronic health records (EHRs) are now essential to the practice of modern medicine—so essential, in fact, that the federal government will help to defray their costs when doctors use them to improve patient care. But used incorrectly—or manipulated—EHRs also pose significant liability risks for providers, as a recent posting on the website of Business Insurance makes clear.[1]

"The plaintiffs seek to use it [EHR] as a sword, and we seek to use it as a shield," said defense attorney Craig R. Merkle, a partner at Goodell, Devries, Leech & Dann in Baltimore, at the annual meeting of the American Society for Healthcare Risk Management, an American Hospital Association-affiliated group representing professionals in the fields of risk management, patient safety, insurance, law, and finance, among others.

For malpractice defendants, EHRs offer a detailed and time-stamped record of the medical decision-making process. When doctors have acted in accordance with the standard of care and documented that fact electronically, the EHR can be a powerful safeguard against a plaintiff's claims of negligence.

But the EHR can also be a powerful weapon in the hands of the opposition. For instance, any change in the electronic record after the fact is easily traceable, something physicians aren't always aware of but that "some of the least sophisticated plaintiff attorneys" know very well, says Baltimore defense attorney and conference participant Marianne DePaulo Plant.

Self-populating electronic templates, which automatically capture a patient's recent medical history, also pose a potential problem for unsuspecting physicians. In one case cited by conference speakers, an EHR template indicated that a patient had had hip surgery when she had actually undergone a spinal procedure.

Templates are "fraught with peril and, as a defense lawyer, [they] give me more heartburn than any other part" of EHRs, said a conference speaker.

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