While it may be hard to imagine the physician or hospital being held liable under the circumstances alleged in the eClinicalWorks litigation, it is only a short step to scenarios in which liability is quite possible.

John C. Ivins Jr., JD, partner with the Hirschler Fleischer law firm in Richmond, VA, offers these scenarios — all based on submitted claims — in which hospital liability may be possible:

• A child presents to his physician with a fever, rash, and flushness. The child has recently visited a country where tuberculosis (TB) was prevalent. The initial office note incorrectly indicates that the patient has not been exposed to TB, and the child is initially treated with fluids and antibiotics.

When the child returns on subsequent occasions due to his condition worsening, the copy-and-paste feature is used to copy the initial note indicating the patient was not exposed to TB. All these events lead to injuries to the child.

In this scenario, liability may hinge on whether the cause of harm was the person who initially incorrectly noted that the child had not been exposed to TB, or the EHR system that permitted the information to be repeatedly copied and pasted.

• A doctor prescribes an antibiotic for a patient indicating a certain amount of milligrams for the medication. But as this information is entered into the EHR system, the order created through the system is, instead, based upon the amount of milligrams of medication per kilogram of the patient’s weight, resulting in the patient receiving many more pills than needed.

In this case, is the cause of this error the person who entered the information, or the EHR system?

• A patient presents to the ED for an injury arising from having stabbed herself with a garden fork. In addressing the patient’s tetanus shot status, the intake nurse selects the dropdown option “unknown/last five years.” Thereafter, the treating physician interprets this as not needing a shot, when it turns out the patient had never been immunized.

Was the cause of this error the person who entered the information, or the choices and format provided by the EHR system?

• An anesthesiologist is using the EHR but does not have information available that tells him the patient is not a candidate for the anesthesia ultimately selected, which results in harm to the patient. Is the cause of the harm the physician, or the structure of the EHR system?

“While the determination of the cause and ultimate legal impact in each scenario would be further affected by additional facts, the state’s laws, and, perhaps, the terms of applicable contracts, each reveals the challenges present in considering issues of potential liability arising from the use of EHR systems,” Ivins says.