HIT transition brings new liability risks

Progress brings new benefits, but it also brings new uncertainties.

And one area in which the push toward EHRs is opening new questions, a recent report suggests, is in the domain of medical malpractice law. The report comes from a Texas-based health-IT consulting firm, and, it attempts to lay out the myriad ways the adoption of EHRs could put providers at new legal risk.

In the report’s Executive Summary, the authors note, “As more providers adopt new EHR technology, software design flaws will be identified as the systems are tested. 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 may also increase as patients gain easier access to their electronic data and discover that their provider may not have followed one or more treatment protocols that are embedded therein.

“Until these challenges are addressed,” they continue, “ 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.”

To cite just one example, in the privacy arena, the authors claim “The privacy risks expand for EHRs relative to paper because they can exist virtually in multiple physical locations simultaneously. Physicians adopting EHRs face several areas of uncertainty that should be addressed by professional medical associations, EHR vendors, IT support staff (internal departments or hired consultants), risk managers, and the medical liability industry.”

As they point out, the legal paradigm will keep evolving as new problems are identified and both providers and the legal system adjust. But policymakers need to consider the potential legal snares thoroughly. After all, the goal is to keep providers moving forward. But it seems safe to say that it won’t take many high-profile malpractice suits involving EHRs to make many providers stay on the sidelines until the legal issues are more thoroughly ironed out.