Liability Concerns of Electronic Health Records

1. Liability Concerns of Electronic Health Records Mark Seigel, MD, FACOG Chair, ACOG Practice Management Committee 1

2. Disclosure I have no financial interests or industry relationships to disclose.

3. Learning Objectives • To understand how liability may be increased through use of new technology • To understand new legal requirements of electronic health records • Learning how to minimize risk

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5. Liability may be Increased “e-iatrogenesis” is patient harm caused at least in part by the application of health information technology- Weiner, JAMIA 2007;14:387 5

6. Liability may be Increased 6

7. Liability may be Increased 7

8. Liability may be Increased 8

9. Liability may be Increased 1. Physician Time Constraints and Information Overload • Using bedside computers increased documentation time by 17.5% • Using centrally located desktops for CPOE rather than prescription pads increased documentation time by 98% to 328% • Patients may resent doctors focusing on computers instead of them 9

10. Liability may be Increased • Computerized records are lengthy and cumbersome to read • 1000 character limits on description • The system encourages fragmented documentation • Physicians may be held liable for harm that could have been averted if they had more carefully studied their patients’ medical records 10

11. Liability may be Increased • Using templates to complete encounter information without doing the work • Letting others use your password • Disregarding tracking and safety alerts • Disregarding missing results due to incomplete lab implementation • Not recording information promptly 11

12. Liability may be Increased 2. Reliance on others’ information- failure to verify other diagnoses 3. Input Errors- data may be entered into wrong patient’s chart 4. Challenges of Decision Support- suggestions are often disregarded 5. Responses to e-mail- failure to respond in a timely manner 12

13. Liability may be Increased • hold harmless clauses in contracts shifts liability to physicians • concept of “learned intermediary” • provisions in contracts may prohibit disclosure of software errors to the healthcare community 13

14. Liability due to Usability Issues • Lack of synchronization • Discrepancy between when information is entered and recorded • Progress note or order is placed on wrong patient • Loss of data due to incomplete capture • Less communication with patient 14

15. The “new” legal record Metadata: Hidden information automatically embedded in electronic data that can demonstrate when information was created or altered. It allows for a complete audit. 15

16. Breach “The unauthorized acquisition, access, use, or disclosure of protected health information which compromises the security or privacy”

17. Loss of Data HIPPA covered entities must notify affected parties following the discovery of a breach Notification requires written notice by 1st class mail HHS and media outlets will need to be notified in the event of a large breach

18. Protect yourself from liability • A physician in Rhode Island lost her hospital privileges and was reprimanded by the state medical board for discussing a trauma case on Facebook. • Information about patients can be re-identified if the date, hospital or doctor’s name is known. • State medical boards are receiving reports of online professional violations and responding with disciplinary proceedings. • Make sure you understand privacy settings, which vary by platform. • Whatever you post online can never be truly deleted.

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24. Liability may be Decreased • Improved access to legible records • Standardized documentation • Improved notification of lab results • Better transfer of information between consulting physicians • Adherence to evidence based clinical decision support • A complete, legible record 24

25. Liability may be Decreased • Improved documentation • Clinical decision support improves practitioner performance • Computerized physician order entry • Arch IM 2008 study in Massachusetts showed 6% physicians with EMR had a paid liability claim compared with 11% physicians without EMR 25

26. Liability may be Decreased • “further strengthened by the observed trend among physicians with EHRs that suggests lower rates of paid malpractice claims among more avid users of their EHR systems.” 26

27. Liability may be Decreased AIM 2009 study in Texas looked at 4 basic information systems of hospitals: • notes and records • order entry • test results • decision support and the care of 167000 patients. 27

28. Liability may be Decreased Higher use of information technology correlated with: • decreased risk of mortality • decreased risk of complications • lower hospital costs 28

29. Changing Standards • Changing rules of e-Discovery • Duty to disclose all relevant data • Duty to preserve all relevant data • Attorneys can request native file format and metadata- the actual electronic source file that includes date and time stamps 29

30. How to Minimize Risk • Ensure records meet legal, business and record management needs • Take an active role during system evaluation, testing and selection • Help avoid physician practices that pose legal risks • Identify changes needed after implementation 30

31. How to Minimize Risk IOM proposals: • Increased reporting of IT-related adverse events • Vendors support free exchange of safety information • HHS recommend Congress establish an independent federal entity to investigate health IT safety • FDA develop framework for regulation 31

32. References • Vigoda, Michael “e-Record, e-Liability” J. of AHIMA 79 no. 10 (October 2008): 48-52 • Health IT and Patient Safety: Building Safe Systems for Better Care. Institute of Medicine November 10, 2011 • AMA News Jan 9, 2012 Smartphone distractions • Arch Int Med 2008;168(21)2362-7 Mass. • Arch Int Med 2009; 169(2):108 Texas • JAMA 2009;301:1276 Hold Harmless • JAMA. 2012;307(11):1141-1142. doi:10.1001/jama.2012.330. Physician Violations of Online Professionalism 32