EHRs Increasingly Included in Medical Malpractice Lawsuits

May 6, 2015 in News

Electronic health records are increasingly being cited in medical malpractice lawsuits, Politico reports.

According to a review of data by the Doctors Company, a physician-owned medical malpractice insurer, EHRs were involved in just 1% of a sample of lawsuits that had been closed between 2007 and 2013. However, the frequency of such EHR-related lawsuits doubled between 2013 and 2014.

According to Politico, the numbers of existing cases could be higher because it often takes up to six years to conclude a case.

Doctors Company Medical Director David Troxel said that while the percentage of EHR-related lawsuits remains comparatively low, “this is going to become a bigger and bigger issue.”

EHR Lawsuit Details

According to Politico, the lawsuits alleged a variety of mistakes caused by EHRs, including:

  • Faulty voice-recognition software;
  • Misinterpretation of EHR drop-down menus;
  • Reliance on outdated or incorrect records; and
  • Typos that led to medical errors (Allen, Politico, 5/4).

Further, some EHR systems are designed in a way that can prompt errors, according to Computerworld. For example, diagnosis drop-down menus can automatically enter data if a cursor hovers over a specific item for too long (Mearian, Computerworld, 4/13).

Targets of Lawsuits

According to Politico, health care professionals are typically the targets of such lawsuits because of contract agreements that exempt vendors from most legal liability under a “learned intermediary” doctrine. Such agreements are based on the idea that while information systems store the data and sometimes provide clinical decision support, the responsibility lies with the actual provider.

However, analysts predict that providers and health systems will start suing vendors, in part because of the potential to recover large sums in damages.

Keith Klein, a professor of medicine at the University of California-Los Angeles, said, “It’s only a matter of time before a company like athenahealth or Allscripts or Epic or Cerner gets sued.”

According to Scot Silverstein, a health IT expert at Drexel University, lawyers are already considering such cases.

Effect of EHR-Related Malpractice Cases

According to Politico, the effect of EHRs on malpractice lawsuits remains “modest.”

However, some analysts have expressed concern about the uncertainty that surrounds EHR data. According to Politico, EHR errors and inaccuracies could:

  • “[C]ast doubt” on physicians; and
  • Diminish clinical research that relies on large pools of data.

Michael Victoroff, a liability expert, said he believes the U.S. eventually will need a settlement fund to be drawn from to compensate for injuries to patients stemming from EHR-related cases (Politico, 5/4).

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