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Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.
As more dermatologists implement EHR systems, many are wondering if EHR adoption will increase or decrease their medical legal liability. Dr. David Goldberg provides his insight in this month's legal column.
Dr. EMR has spent a significant amount of money to implement a comprehensive electronic health record (EHR) system in his office. He has been in practice for almost 30 years and has waited as he saw early-adopting peers struggle with EHR implementation. Now, he has become convinced that an electronic system would significantly decrease his medical legal liability and allow him to provide better patient care. Recently, several colleagues have questioned his decision. They have refrained from EHR adoption because they are certain it would increase liability. Who is right?
As more dermatologists implement EHR systems, many have seen an increase in workload. Dermatologists are now concerned that implementing new information systems may initially increase, rather than decrease, a provider’s malpractice risk as described in a 2010 article published in the New England Journal of Medicine.
As we have all seen with any new device, the risk of complication increases during the early period of use. And moving from paper records to electronic systems has been no exception. As the authors of the NEJM article point out, studies have already documented increases in computer-related errors following the implementation of computerized physician order entry systems. Mortalities may not be the major issue in the dermatology office, but numerous other errors may occur, such as a physician entering incorrect information.
The gap between paper documentation and the dawn of electronic records can affect our daily care of patients. In illustrating this, the authors of the NEJM article cited a study that showed a higher rate of failure to inform patients of abnormal test results in outpatient practices when both paper and electronic records were used compared with the use of paper or electronic records alone. There is no reason to think such problems would not exist in a dermatology office.
Time spent training staff and optimizing EHR systems for use in a dermatology office will decrease the possibility of human-based errors, as those dermatology offices that have taken this approach will attest. Yet, it may not prevent mistakes entirely.
As with any system, failures may have a delayed occurrence, and a provider may not become aware until even later.
The authors of the NEJM article wrote that a federal court held that a hospital that switched from a paper to an electronic system for delivering test results had a duty to “implement a reasonable procedure during the transition phase” to ensure the timely delivery of test results to doctors. While the court did not elaborate on the requirements that constitute a reasonable procedure, it found that the hospital had met its duty by establishing a training protocol for the period before all physicians had completed training on the new system.
While the inclination has been that EHRs would reduce liability, it still is not clear.
The use of EHR systems creates new legal issues, by increasing more extensive written documentation, and the additional metadata recorded can be used to track physician activity, such that it could support proof of negligence.
As a critical mass of dermatologists adopt and implement EHR systems, failure on the part of the new minority non-adopters to follow may be considered a deviation from the standard of care.
If Dr. EMR did not eventually purchase an EHR, he may be found to have deviated from the standard of care for that non-purchase.
Mangalmurti SS, Murtagh L, Mello MM. Medical malpractice liability in the age of electronic health records. N Engl J Med. 2010;363(21):2060-7.
Smith v. United States, 119 F. Supp. 2d 561 (D.S.C. 2000)