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EMRs might reduce malpractice liability, but effects not certain
Accurate data entry, good computer security key to success
Wider adoption of electronic medical records (EMRs) has been a goal in health care for years, and progress is expected now that President Obama's economic stimulus plan includes $19 billion to help medical care facilities switch to electronic records. Risk managers have long thought, or at least hoped, that EMRs would result in fewer medical errors and malpractice lawsuits. The country may find out soon if that is true.
Legal experts say there is good reason to think that EMRs will reduce malpractice lawsuits or at least offer better support for their defense, but other observers say those benefits are far from certain. There may be some unintended consequences and hidden downsides that will outweigh the positive effects on lawsuits, they say.
The president's rationale for EMRs is that they will provide a streamlined and consolidated process of tracking patient care, which will in turn lower administrative expenses, and by extension, the costs of health care overall. The money in the stimulus bill is intended to spur what has so far been a slow adoption of the technology. A recent study of hospitals found that only 1.5% is fully computerized, and only another 7.6% have some sort of basic electronic medical record system.1
A recent study from the Harvard Medical School and the School of Public Health gained some attention with its finding that 6.1% of physicians who used computers to keep records had paid a malpractice claim in the past 10 years, compared with 10.8% of physicians who relied only on a paper system.2 But then doctors at Harvard wrote in The Wall Street Journal that "The impact of medication errors on malpractice costs is likely to be minimal, since the vast majority of lawsuits arise not from technical mistakes like incorrect prescriptions, but from diagnostic errors, where the physician makes a misdiagnosis and the correct therapy is delayed or never delivered. There is no evidence that electronic medical records lower the chances of diagnostic error."
Many possible benefits
The potential benefits regarding health care risk management are numerous, says Ed Fotsch, MD, CEO of San Francisco-based Medem Inc., which provides records management systems and other services for health care providers.
"EMRs have the potential to improve medical documentation while at the same time using technologies to facilitate reminders and prompts for appropriate medical therapies. This can, in turn, enhance patient safety and reduce the risk of medical liability," he says. "Traditional paper-based records do not offer these advantages, and paper-based medical charts are frequently misplaced or incomplete."
Fotsch says malpractice liability carriers are keenly aware of the patient safety and risk mitigation potential associated with EMRs, which is why a number of these companies - including Connecticut Medical Insurance Co., Midwest Medical Insurance Co., Physicians Insurance Agency of Massachusetts, Princeton Insurance, and Texas Medical Liability Trust - now offer premium credits and/or discounts for physicians or groups that use EMRs.
For example, Midwest Medical Insurance Co. announced an EMR premium credit of 2% to 5% in September 2007. To qualify for the credit, the EMR system must meet certain requirements, including use by 75% of group providers.
"EMRs have the potential to decrease the number of malpractice claims by improving patient care and safety via automated reminders, medication interaction checking," Fotsch says. "And they have the potential to improve the defense against a claim by improving documentation."
Gina Greenwood, JD, an attorney with the law firm of Baker Donelson in Macon, GA, agrees that EMRs, when used correctly, can provide invaluable medical facts about patients that can help reduce medical errors and prevent malpractice suits. For the most part, patients are poor medical historians, rarely able to articulate in a concise manner the primary facts that a physician needs to know in order to provide proper and safe care, she says. Patients also may be intimidated by physicians and have the misconception that doctors are all-knowing, even where the physicians do not have access to past records from other practitioners. Patients also may think that the physician reviews the entire paper record cover to cover before entering the treatment room, which is rarely the case.
"Therefore, it is important for physicians to have electronic tools that summarize pertinent information to the physician in a format that is user-friendly and quickly accessible. Having a patient medical record at the physician's fingertips can be an invaluable tool for providing quality patient care," Greenwood says. "Not only will physicians benefit from the increased access to information, but they will also benefit from automated warnings and reminders that alert physicians and pharmacists of drug or other errors."
Greenwood points out a potential drawback that few EMR cheerleaders have considered. She says the medical community needs to understand that if the country ever reaches a point where physicians have access to one comprehensive medical record for every patient, the bar may be raised for what courts and juries may expect of physicians with regard to reviewing histories.
"Physicians will need to allow time between office/round visits to review all the facts, because they may be ultimately held to a higher standard of care for what they should have known," says Greenwood. "In other words, the electronic medical record will only be as good at preventing medical errors and malpractice suits as the electronic software product and the user."
William D. Yoquinto, JD, an attorney with the law firm of Carter Conboy in Albany, NY, says the electronic medical record could well improve record-keeping and reduce malpractice exposure in the long run. But, he says, until it becomes more ubiquitous and the use by professionals more fluent, "in my opinion, it currently presents as many additional challenges as benefits to the defense of malpractice actions."
One issue relates to the reproduction of the record. Making a paper copy of the record and displaying it to a jury can be a problem, because the format of EMRs is not designed to print well or be clear on paper. (Consider the result of printing a string of e-mails. The information is all there, but it is not clear and there is a tremendous amount of extraneous data.)
"One possible advantage and answer to the medical record reproduction concern will be when it is demonstrated in court in electronic form," Yoquinto says. "This could be very dynamic and interesting to jurors, many of whom will have familiarity with the use of computers from their own workplace. It will be an opportunity to show the jury how the record is created and allay concerns about record alteration."
Yoquinto notes that while the electronic record does offer some advantages, not the least of which is legibility, those benefits will not come without adequate training and willingness to learn the tool.
"Without that training and willingness to learn, the electronic medical record presents its own professional liability risks and challenges and will not achieve all its potential advantages, including those of reducing exposure to malpractice claims," he says.
Bruce A. Boissonnault, president and CEO of the Niagara Health Quality Coalition in Williamsville, NY, says there also could be a problem with how electronic medical records, over time, create databases that are easier to manipulate in ways that may not be positive.
"For example, with computers, hundreds of records can be upcoded in an instant for higher reimbursement. Also, with computers, the back-end EMR databases could be scrubbed to ensure that adequate post hoc rationalizations exist to justify outcomes after the fact," he says. "Finally, with one EMR, the lobbying pressure to get every profitable type of care programmed into the national EMR standard will be immense. Every specialty will want their pet project programmed into the EMR reminder systems. Science, not rent-seeking, must be the mechanism to determine what is and is not programmed into EMR reminder systems."
Maureen Martin, JD, senior fellow for legal affairs with the Heartland Institute, a think tank in Chicago that deals with health care issues, says there is no authoritative research establishing that computerizing medical records will reduce malpractice claims.
"I've looked at hundreds of malpractice cases in 27 years of practicing law, and I can only recall one stemming from prescribing the wrong drug, which a computerized medical record might have prevented, and the doctor was acquitted in that one," she says. "Many involve problems during labor or delivery, and most others, in my experience, result from a wrong diagnosis. Computerizing medical records won't reduce such cases."
The bigger risk, Martin says, is the "garbage-in/garbage-out" problem that afflicts all computer usage.
"Mistakes in data entry are inevitable. Studies have found mistakes are less likely when doctors and nurses create their records by hand," she says. "All in all, electronic medical records will create more problems than they will solve."
1. Jha AK, DesRoches CM, Campbell EG, et al. Use of electronic health records in U.S. hospitals. N Eng J Med 2009; 360:1,628-1,638.
2. Virapongse A, Bates DW, Shi P, et al. Electronic health records and malpractice claims in office practice. Arch Intern Med 2008; 168:2,362-2,367.
For more information on EMRs and malpractice lawsuits, contact:
Bruce A. Boissonnault, President & CEO, Niagara Health Quality Coalition, Williamsville, NY. Telephone: (716) 250-6472. E-mail: email@example.com.
Ed Fotsch, MD, CEO of Medem Inc., San Francisco. Telephone: (415) 644-3800.
Gina Greenwood, JD, Baker Donelson, Macon, GA. Telephone: (404) 589-0009. E-mail: firstname.lastname@example.org.
Maureen Martin, JD, Senior Fellow for Legal Affairs, The Heartland Institute, Chicago. Telephone: (920) 295-6032. E-mail: email@example.com.
William D. Yoquinto, JD, Carter, Conboy, Case, Blackmore, Maloney & Laird PC, Albany, NY. Telephone: (518) 465-3484. E-mail: firstname.lastname@example.org.