Amid surge in malpractice lawsuits, EHRs often targeted in litigation, attorney says

Providers often wind up defending their electronic health records, rather than what got them sued in the first place, Mary Re Knack will explain at HIMSS16
By Greg Goth
09:17 AM
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As if healthcare executives don't have enough worries about implementing electronic health records, yet another issue is starting to ramp up.

"What's been happening more frequently in the last few years is that certain plaintiffs' lawyers – a kind of group of them who communicate with each other – have started to see the medical record as an opportunity for litigation," said Mary Re Knack, a Seattle-based attorney for the firm Ogden Murphy Wallace.

Knack will be presenting an exploration of these emerging litigation troubles in the session "Just Press Print: Challenges in Producing EHRs in Litigation" with colleague Elana R. Zana at HIMSS16, beginning in late February.

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Electronic health record design is paramount among those issues, Knack said, because EHR vendors quite naturally did not build the software with litigation in mind.

"The data is all stored behind these templates, and depending on what you are trying to look at, whether it's a summary or lab reports or such, the data then populates the template on a screen. But when you print it, it doesn't print out as cleanly or as nicely,” Knack said.

One of these obvious challenges in trying to review somebody's care is how do you see it? How do you even read what the care was? Who did what? And when?

"You may have a case that's very straightforward medical malpractice, but because of the way the medical records get printed out, the same piece of data may appear in five places. Somebody who looks at it, whose goal is to show how it's confusing, can then start to challenge the care that was given based on the fact the medical record is confusing,” Knack explained. “They can take another step, and that is questioning whether the data in the medical record is accurate or if it has been changed."

As a result, Knack said, a healthcare provider can find itself in litigation that is ostensibly about the care provided, when in actuality that organization has to " defend how the medical record works."

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Practically speaking, she said, the potentially expensive situation needs to be addressed by enhanced communication between provider organizations, particularly C-suite staff, and their vendors, and also internally within provider systems.

"In the healthcare community, the medical negligence work, because of the way it's insured, tends to kind of be off on the side,” she added. “This isn't true in every healthcare setting, of course, but it's off to the side many times so the people who are the decision makers with respect to bigger issues aren't necessarily aware of how these particulars are being used in litigation, because litigation is handled 'over there.'"

Knack and Zana will be presenting "Just Press Print: Challenges in Producing EHRs in Litigation" from 2:30 - 3:30 p.m. March 1 at the Sands Expo Convention Center, Palazzo L.

Twitter: @HealthITNews