Five EHR-Related Medical Malpractice Landmines

EHR-related malpractice woes are not a significant threat to practices, but that doesn't mean the potential isn't there.

A few years ago, The Doctors Company, a Napa, Calif.-based medical malpractice insurance company, analyzed every claim in its database from 2007 to 2014. EHR-related claims were a factor in approximately 1 percent of the claims. Moreover, David Troxel, MD, medical director and secretary of the firm’s board of governors, notes that the EHR was often a contributing factor in these claims, but not the primary reason for the malpractice suit. However, he notes, "Two to three years have gone by [since that analysis] and we're seeing more claims…where the EHR was the cause of the claim. I haven't analyzed those yet though."            

Trish Lugtu, senior manager at Advanced Analytics Solutions at Constellation, a Minneapolis-based partnership of mutual liability insurers, has done her own research to confirm the minimal impact EHRs have had on malpractice cases, thus far. She says in an six-year analysis of Constellation's claims and suits across the base of its policy holders, approximately 17,000 physicians and 250 hospitals, there were only 37 cases where EHRs were involved. This represents 1.3 percent of all claims.

All of this data doesn't mean EHR-related malpractice errors aren't a big deal. In fact, experts say the opposite. For one thing, they can be costly. Of the Constellation data, Lugtu says, the EHR claims represent 2.25 percent of Constellation's total incurred cost of all claims. "It's a small number of claims, but it's disproportionately higher [in cost]," she says. Indeed, for some provider organizations an EHR-related mishap can cost millions, according to a presentation by Keith Klein, MD, clinical professor of medicine at UCLA.

Even worse, EHR-related mishaps are often extremely harmful to the patient when they do occur. A study in the Journal of Patient Safety from researchers from the Agency for Healthcare Research and Quality (AHRQ) found that while health IT-related events leading to a malpractice claim occurred infrequently, more often than not these adverse events came with extensive harm to the patient. In fact, AHRQ researchers say that more than 80 percent of the EHR-related cases involved moderate or severe harm to the patient.

Common EHR-Related Malpractice Problems

A small problem today, sure. As Troxel notes, this problem is likely to increase as EHRs become more engrained in today's medical practice, the malpractice-related problems associated with the technology may intensify. Consider that, according to The Doctors Company, user error is the cause of 64 percent of EHR-related malpractice claims. Practices need to focus on eliminating several common problems, mostly tied to user actions, which have led to the majority of EHR-related suits.

Here a few of those problems, as outlined by experts.

Copy and Paste: Troxel says EHRs have data fields that have to be filled out every encounter with the patient, even if nothing related to that particular data field changes, such as history and physical examination information. Because this is "annoying and pointless," he notes, many doctors are tempted to copy the note from the prior encounter and make changes as appropriate. This leads to a few potential problems, he says.

One problem is that sometimes physicians forget to update the note with the appropriate changes when copying and pasting.  The second problem is that constant copying and pasting leads to pages and pages of notes. "When the physician puts in some significant event that occurred, it can get lost and overlooked easily," he says.

In the same vein as copying and pasting, Lugtu says drop-down menus can often be the source of a user error that leads to a malpractice suit. Not only can users click the wrong thing in the menu, such as the wrong patient symptom, but these menus lead to structured information that physicians can easily overlook when reviewing a note.

Use of Templates:  Jeffrey Kagan, MD, a Newington, Ct.-based internist, has experience reviewing malpractice cases for attorneys. One trend he has seen related to EHR-induced malpractice suits comes from template use. "Templates are supposed to help us do something more comprehensive, but often our templates have a lot of old information that carries forward. You can modify them, if you remember to. If you don't, whatever was there from before appears again, whether it's appropriate or not," he says, adding that the use of templates leads to laziness among physicians, who aren't properly documenting the patient's visit.

In order to avoid falling into this trap, Kagan advises physicians to proofread and modify templates if they are going to be used. He also says to document in the EHR whenever possible to cover yourself. "I tell every patient, 'Call if you aren't feeling better.' If the patient says I never told him that, I have it written next to my signature in every note," he says.

Alert Fatigue: The e-prescribing module in an EHR is a potential landmine for malpractice, says Troxel. He notes that alerts indicating when there is a problem with medication dosage or drug-drug interaction will pop up as practitioners are inputting data into the EHR. "They are very annoying because there are so many of them. I'm told by [EHR users] they arise whether you are prescribing aspirin or a complex antibiotic," he says. "As a result, doctors get annoyed and develop alert fatigue, and they just turn the alerts off."

Troxel says while this is understandable, turning off the alerts could mean a potential significant problem could go undetected. Lugtu says that while medication allegations come up most frequently in EHR-related malpractice suits, they don't typically have a high severity outcome. Either way, experts say physicians should not just blindly override these prompts.

Clinical Decision Support Alerts:Another prompt that goes ignored, often to the determinant of the patient and the doctor, are clinical decision support (CDS) alerts. These are clinically relevant educational materials that come up as the practitioner is documenting in the EHR. Like with medication alerts, Troxel says practitioners should ignore these at their own peril. If anything, he says, physicians should document the reason why they overrode the CDS alert.  

Missing Information: While most of the errors are primarily user-related, there are problems, according to Lugtu, with poor technology design too. She says an "interface breakdown" can mean providers will miss necessary information, such as a test result, to make a proper diagnosis. These often occur immediately after implementation of a new system, she says.

The idea of physicians missing a vital piece of information in the EHR can be either a user or a technical error, Lugtu notes. "When a physician doesn't see a test result, it can be [a poorly designed interface], it could be [the information] wasn't routed correctly, whether the physician wasn't notified of the result being there, or the physician clicks it as seen without actually reviewing it," she says.

These are just a few of the potential areas where the EHR can lead to a malpractice suit. Lugtu advises physicians to read educational resources on healthIT.gov and AHRQ, as well as the nonprofit patient safety organization, ECRI Institute, and elsewhere to keep abreast of best health IT safety practices. She also says it's important to embrace the technology, not hide from it.

"While we're finding the EHRs are involved malpractice suits, we believe even more so, that they are beneficial in preventing many types of [false] allegations. We're not saying practices should put the EHR down, we want to boost it up while making sure it's not an issue," she says.