EHR-Related Malpractice Suits Are on the Rise, but Low Overall

Ken Terry

August 30, 2019

For the past 8 years, the number of malpractice claims in which the use of electronic health records (EHRs) has contributed to patient injuries has been growing, according to a new report from The Doctors Company, a leading malpractice insurer.

The number of such claims paid by The Doctors Company rose from seven in 2010 to an average of 22.5 in in 2017 and 2018, the report shows. Altogether, 216 EHR-related malpractice claims were closed during the 8-year period.

These claims still form a small percentage of total malpractice claims. In 2018, they represented just 1.39% of the claims universe, up from 1.02% in 2017 and 0.35% in 2010, the report states.

Moreover, EHRs are typically contributing factors, rather than the primary cause of claims, the malpractice insurer said.

The main reason for the increased number of EHR-related malpractice claims is the rapid spread of EHRs during the period in question, Dean Sittig, PhD, a professor at the University of Texas Health Sciences Center at Houston, told Medscape Medical News. Since 2009, he said, the percentage of doctors using EHRs has jumped from 15% to more than 90%.

As the use of EHRs spread from early enthusiasts to doctors who were just trying to get their work done, he added, typical EHR users no longer paid as much attention to their interaction with the computer software. That relative inattention can produce errors, he noted.

System and User Issues

The EHR components of the claims closed from 2010 to 2018 were caused by either system technology and design issues or user-related issues, the report shows. Among the former causes were EHR failures (12%), lack of or failure of an EHR alert or alarm (7%), a fragmented record (6%), failure or lack of electronic routing of data (5%), insufficient scope/area for documentation in the EHR (4%), and lack of integration/incompatible systems (2%).

To illustrate how a system failure could lead to a malpractice suit, the report cited a case in which an elderly female patient presented to an otolaryngologist for sinus complaints. The physician intended to order Flonase nasal spray, but the EHR misinterpreted his abbreviation of "FLO" in the medication order screen as Flomax, a medication for enlarged prostates in men. A side effect of Flomax is hypotension, and the patient went to the emergency department (ED) 2 weeks later because of dizziness. An ED physician discovered she was taking the wrong medication.

Sittig agreed that this was a system error because the EHR shouldn't have assumed the prescribed drug was Flomax, based on the abbreviation. "The only time the computer should do auto complete is when there's nothing else that could possibly match it." Nevertheless, he said, this is a common problem in EHRs.

Attorney Peter Hoffman, a partner and head of the professional liability group at Eckert Seamans, told Medscape Medical News that he didn't believe this was a system error. In his view, the physician didn't use an appropriate abbreviation, and the pharmacist should have caught the mistake. So this was a case of human errors by both the doctor and the pharmacist, he said.

"I understand the desire to have a fail-safe in the EHR," he added. "You should have a system that's fail safe, so you don't have a plane crash, as Lucian Leape said. You could make it safer. But here you have two guys who made a mistake. It's human error, it happens."

User-Related Errors

Top user-related issues in malpractice claims, according to the report, are entering incorrect information (13%), prepopulating/copy and paste (13%), hybrid health records/EHR conversion issues (13%), other user errors (12%), insufficient training and/or education (7%), alert issues/fatigue (2%), and computer order entry workarounds (2%).

Copy-and-paste is a serious problem, because when a doctor copies a previous note into the current one, he or she doesn't always document changes in the patient's condition. In one case, the Doctors Company said, a 38-year-old obese patient presented for medical clearance and had normal test results. Three months later, the patient presented with shortness of breath and dizziness. His blood pressure was 112/90 and his pulse was 106, but no tests were ordered.

Five days later, the patient died from a pulmonary embolism. Experts questioned whether his physician had conducted a complete assessment in his final visit. The progress note was identical to the previous note from 3 months earlier, including old vital signs and spelling errors. Clearly, it had been cut-and-pasted into the record.

Cut-and-paste is a known danger, Sittig noted, but other kinds of user errors can be even more insidious. When doctors click hundreds of times a day on drop-down menus, for example, they're likely to make some errors. These mistakes can be replicated across the organization's system and also systems in other organizations, such as pharmacies and other providers' EHRs. Even if the physician corrects these errors, they won't necessarily be rectified in other systems.

Wide Range of Specialties

A wide range of specialties are at risk from malpractice suits related to EHRs. The research shows, though, that  primary care doctors such as family physicians and internists are more likely than other specialists to be sued when EHRs are one of the causes of patient injuries.

Table. Specialties With Highest Percentage of EHR-Related Claims
Specialty Percentage 
Family medicine 8%
Internal medicine 8%
Cardiology 6%
Radiology 6%
Obstetrics 5%
Orthopedics 5%
Nursing 5%
Hospital medicine 4%
Gynecology 4%
Emergency medicine 3%
Anesthesiology 3%
Plastic surgery 3%
Urology surgery 3%
General surgery 3%
Source: The Doctors Company

 

In Sittig's view, primary care physicians are more at risk because they see more patients than medical and surgical specialists do, and for a wider range of complaints. As a result, they tend to use the EHR more than, say, a plastic surgeon, who typically reviews the medical history, writes a prescription, and dictates the progress note.

Hoffman concurred with the latter point. In addition, he said, EHR-related issues for primary care doctors could be related to cut-and-paste, drop-down lists, and prepopulation of EHR data.

While EHR-related malpractice claims remain uncommon, they're frequently serious. According to the report, patient injuries cited in these cases include death (25%), adverse reaction to medication (23%), need for surgery (15%), emotional trauma (14%), undiagnosed malignancy (13%), and organ damage (11%).

Diagnosis-related allegations occurred in 31% of the EHR-related malpractice claims — not surprising, said Hoffman, as this is the most common reason for malpractice suits overall.

 

Other charges included improper medication (11%), improper management of a surgical patient (8%), improper management of a treatment plan (7%), improper performance of surgery (7%), wrong medication (5%), wrong medication dose (5%), and performance of treatment or procedure (5%).

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