Why Your EHR May Increase Malpractice Liability Risk

Implementing an EHR may put you at higher risk for a patient to bring a successful malpractice lawsuit against you. 

That’s according to EHR consultant Ronald Sterling, who told attendees during a session at the recent MGMA12 conference in San Antonio that EHRs are “vulnerable to a number of product design, use, and implementation issues” that could undermine a physician’s malpractice defense.

The good news is that due diligence during your EHR selection and transition process - and thoroughly documenting that process and the reasons for it - can help you avoid EHR-related problems that could crop up during a lawsuit, said Sterling, who is president of Sterling Solutions, Ltd., a consulting firm based in Silver Spring, Md.

Here are some of the key tips he shared during his session:

When selecting an EHR
During the discovery process of a lawsuit, every aspect of physician’s EHR use - from selection to implementation - may be analyzed. It’s crucial that you make it clear that you conducted “due diligence” when selecting and transitioning to your EHR, said Sterling.

One of his key recommendations is to conduct your own EHR selection process. In other words, don’t choose the EHR a hospital or larger health system is pressuring you to select, choose the EHR that is best for your practice and your patients. “The theme is that you’ve got to basically go toe-to-toe with these guys and say, ‘I’ve got to protect the integrity of the clinical content ...,’” said Sterling.

Also, don’t forget to document the selection process and, ultimately, the reasons you chose a particular EHR.

When transitioning to and implementing an EHR
Also during the discovery phase, prosecutors may analyze whether your EHR transition (from paper to electronic or from a previous to a new EHR) compromised the patient record, or resulted in a lapse in care, said Sterling.

As a result, it’s critical to institute transition processes and document those processes to show that the transition was done in a way that maintained the integrity of the original record. “We have to have a process, and we have to have a quality assurance measure,” said Sterling. 

Make s ure that qualified individuals determine what clinical information from each record should be transferred into the new record. Also, train staff on how to access information in the original record, should they need it. In addition, train staff to properly organize any items that are scanned into the new record.

It’s critical to be very involved in the transition and implementation process, said Sterling, noting that common pitfalls occur when physicians and other staff members let their EHR vendor or IT staff make big decisions on their own. 
“ ... We are giving up clinical control to ‘techno geeks,’ and we are basically letting our system run our office and our systems, instead of the other way around.” He said. 

When moving forward with an EHR
Institute policies and procedures to ensure that as you continue to use the EHR, physicians and staff continually use it in a way that ensures the best patient care and documentation. “At least once a month, get your super users together and talk about what’s going on with the system, what are the problems,” said Sterling.

Also, continually train and retrain staff members on proper EHR use, he said, noting that practices “are responsible legally, professionally, and every other way to maintain the integrity and the accuracy of the patient’s medical record.” 

What suggestions would you share with other practices regarding how to ensure EHR use does not increase malpractice liability risk?