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Legal Report: Three Risks to Avoid in Health IT


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Legal Report: Three Risks to Avoid in Health IT

By Ellen Epstein Cohen, JD, Adler, Cohen, Harvey, Wakeman, Guekguezian, LLP

Related to: Cures Act: Opening Notes, Electronic Health Records, Emergency Medicine, Primary Care, Nursing, Obstetrics, Other Specialties, Surgery

Medical practice can barely keep up with developments in technology designed to allow more efficient delivery of health care. Innovations are improving care, yet at the same time they can increase day-to-day risk.

As we transition from the traditional “paper chart” to a variety of electronic medical systems, many issues arise that have direct implications for the effective defense of malpractice cases. Here are three quick concerns:

First, what does "the medical record" consist of? Arguably, whatever is written by a provider about the history, evaluation and treatment of a patient, in an office or hospital setting is part of "the medical record." This is true, whether handwritten on paper, dictated, or typed into an electronic system. Periods of transition from paper to electronic record-keeping create a special risk of overlapping inconsistent records, or missing records, and it is important to monitor transitions closely.

Second, does "standardized text" adequately replace individualized comment by the provider? Standardized text regarding, for example, negative findings, saves the clinician a lot of time, and provides detailed information in the electronic record. It does not, however, replace the value of patient specific comments.

In the malpractice context, these automatic templates can work for or against a provider. For example, a template could list many points of evaluation that weren’t actually covered in a particular encounter. So at trial it may look like the clinician provided a fuller examination and missed a diagnosis, when it was actually a focused visit. Only the detailed individualized comments input by the physician or nurse provide a clear picture of that particular patient encounter.

Third there are concerns as to whether the screen version of an electronic record is the same as the printed version of the data. Providers are now accustomed to looking at computer screens for all patient information. In litigation, when an electronic record is subpoenaed, a printed version is prepared from the electronically stored data. Discrepancies between the screen format and content of information, and the printed version, can create problems.

For example, if the screen version displays the date, time and initials of the provider who received a phone call from a patient, and the printed version omits the times, a potentially very valuable piece of information may be overlooked or “missing” as the defense of the case is developed. Confirming that all versions of the data contain all of the same information can be very important in providing a complete defense in a lawsuit.

Ultimately, electronic records promise to bring plenty of benefits to patient care. Efficiency, reliability, and added capability can improve quality and prevent errors—especially in areas of cancer screening and follow up for tests and referrals. However, providers need to be aware of the risks associated with transitions from paper to electronic systems—as well as the risks inherent in electronic systems themselves.

January 1, 2008
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