EMRs could increase malpractice risk

The continuing adoption of electronic medical records (EMRs) might result in increased malpractice liability risk and higher insurance premiums, according to a new report from a health IT research firm.

Many leaders in healthcare focus on how EMRs can reduce the medical liability for certain errors, but they also "create new forms of medical liability and expose existing liability issues in the healthcare environment that might otherwise remain unknown," says a white paper published by the AC Group, a Montgomery, TX, health IT research and consulting firm.

Co-authors Mark Anderson, CEO of the AC Group, and Larry Ozeran, MD, associate clinical professor of health informatics at University of California, Davis, pushed for the government to slow the pace of the federal Meaningful Use incentive program to get medical practices and hospitals to use EMRs. In response to similar concern throughout the healthcare industry, the Department of Health and Human Services recently moved the start date for Stage 2 of the Meaningful Use program from 2013 to 2014. The longer deadline could help avoid a situation in which "artificially short deadlines" for implementation would raise malpractice risks by spurring vendors to cut corners on developing products and rushing users through training, the authors say. (The full report is available online at http://tinyurl.com/85u9nlg.)

The report is based on a study of 65 ambulatory EMRs that were certified to meet federal 2011 Meaningful Use standards. More than 90% did not offer "adequate medico-legal training," and 95% raised specific legal issues, the authors say. "Either could increase the potential risk of a liability claim and would hamper its defense," they write. "As is often the case, technology is advancing more rapidly than our ability to identify and address the medico-legal issues. The result of this uneven progression is that physicians and other stakeholders may be unknowingly exposed to medical liability risk."

Shortfalls in EMR functionality also could contribute to increased liability risk, since the Office of the National Coordinator for Health Information Technology's (ONC) certification criteria doesn't require EMRs to check drug orders against laboratory results or take into account social and family medical history in creating alerts, the report says.

As more providers adopt new EMR technology, "software design flaws will be identified as the systems are tested," the report says. "Data coding errors, implementation challenges, and operational failures will occur as the systems are utilized. These errors should decrease over the long term as vendors, providers, and medical liability carriers monitor the new systems and develop process improvements, but there will be early challenges that will also serve to develop case law through legal action."

Medical liability claims also might increase as patients gain easier access to their electronic data and discover that their provider might not have followed one or more treatment protocols that are embedded therein, the report says. The authors expect that the cost of defending against these claims will increase as more attorneys use electronic legal discovery for the data and the metadata.

"Until these challenges are addressed, medical liability insurance costs are likely to increase even faster than their historical controls in order to compensate the liability carriers for their increased professional liability payouts," the authors say.