The Liability of an Electronic Health Record System

Three years ago, “Dr Derm” decided to purchase an electronic health record (EHR) system for his dermatology office. He is not convinced that there is an economic benefit in doing so, but he has been told that such a system will significantly lessen his medical legal liability because he will be able to better document his patient care. Recently, he was sued in medical malpractice and is having trouble defending himself because of entries into the EHR that he contends he never made and resulted from a software glitch. What is his liability?

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Although the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 has led to an attempt to have meaningful use of EHRs by providers, one of the potential risks that has not been given much discussion is the risk of medical malpractice liability.

The number of installed systems has increased every year since 2009. Today, it is rare that a dermatology office that doesn’t use an EHR system.

Disconcerting to many physicians is the fact that implementing new information systems may initially elevate, rather than decrease, providers’ malpractice risk. This issue was analyzed extensively in numerous articles beginning more than a decade ago.

The Health Insurance Portability and Accountability Act (HIPAA) specifically states that the health care provider is the covered entity responsible for maintaining the integrity of the patient’s medical record—not the EHR vendor, the consultant, or the systems integrator.

A dermatologist can be held liable because most vendors’ contracts essentially say, “We do not practice medicine; it is up to the physician to make sure this EHR is being used correctly. Practices must understand what they’re using and verify that the system is appropriately set up to document the care they provide.”

If a dermatologist finds issues with their EHR, it is the dermatologist’s responsibility to contact the vendor and insist that the glitches be fixed. It is also important to document each attempt to get the vendor to fix the problem.

As with all technologies, the risk of error increases during the initial implementation phase, as providers move from their older familiar system of charting to a new, much more comprehensive system. Several studies have already documented increases in computer-related errors and, in 1 case, an increase in mortality shortly after implementation of computerized provider-order entry systems.¹ Medical errors and adverse events may result from individual mistakes in using EHRs (eg, incorrectly entering information into the electronic record) or system-wide EHR failures or bugs that create their own problems, such as crashes that prevent access to crucial information.

Effective training and tailoring of new systems to existing technology can minimize the incidence of such errors, and organizations that have sufficient resources can monitor problems after implementation and adjust systems to minimize the persistence of errors. However, these measures may not prevent errors entirely, and system failures may recur long after implementation. Such a scenario would leave clinicians to practice blindly until functionality is restored.

At least 1 legal case suggests that providers have a duty to minimize such risks during the transition period. 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. The court did not elaborate on what the requirements were to constitute a reasonable procedure, but 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. Dr Derm may not be able to avoid liability for the software glitch. He alone may be responsible for problems associated with his EHR.

David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey; director of cosmetic dermatology and clinical research at Schweiger Dermatology Group in New York, New York; and clinical professor of dermatology and past director of Mohs Surgery and Laser Research at the Icahn School of Medicine at Mount Sinai in New York, New York.

Reference

1. Dollemore D. Electronic Health Records fail to detect up to 33% of medication errors. University of Utah Health. Published May 29, 2020. Accessed March 7, 2023. https://healthcare.utah.edu/publicaffairs/news/2020/05/electronic-health-records.php.