HL7's Reed Gelzer: EHR malpractice problem at 'critical mass'

As electronic health records become more common, they increasingly are being relied on in medical malpractice litigation, often to the detriment of the provider.

Reed Gelzer, M.D., co-facilitator of HL7 EHR Records Management and Evidentiary Support Profile Standard Workgroup and head of Newbury, New Hampshire-based consulting firm Trustworthy EHR, shared his insights on this growing problem in an exclusive interview with FierceEMR.

FierceEMR: Why are EHRs being used more often in malpractice litigation, and why are they creating more legal problems for providers than paper records?

Reed Gelzer: Until three or four years ago electronic records were not ubiquitous. Now there is critical mass. And in medical malpractice, there's also a lag in change in the legal process. The kinds of effects we predicted to occur now are occurring.

FierceEMR: What's going wrong?

Gelzer: There are design errors and human errors. For instance, a physician prescribed a medicine to which the patient was allergic; a nurse had documented the allergy, but the EHR didn't show the doctor about the allergy until after the record was completed, since the EHR needed the doctor input first to complete the record. The patient had a bad reaction and sued. It was a dysfunction in the EHR, and a lack of understanding of how the EHR worked.  

Other problems stem from [misuse of] copy and paste [which creates an inaccurate record].

Another problem is gag clauses in vendor contracts. Vendors will often stipulate if you observe problems, you can't report them.

FierceEMR: You've warned before that the data in EHRs are so inaccurate that they shouldn't be used in court. Does that apply here?

Gelzer: If subjected to scrutiny, most EHRs will be found wanting--but only if someone looks. Many systems are poorly designed for simple records management support, as well as evidentiary support. But the definition of authenticity is made on the basis of legal process and varies from state to state. For example, in Minnesota records from healthcare organizations are deemed self-authenticating.

FierceEMR: How does this dovetail with the Meaningful Use program?

Gelzer: A lot of organizations have implemented EHRs under Meaningful Use and accepted money from the federal government with the assumption that EHRs were fit for use as patient records. But there's no assurance that Meaningful Use relieves [providers] from the due diligence burden that the systems work as intended. Many chose an EHR because [they believed] if it was certified, it was fit as a patient record. And that's not what it conveyed.

It's a big problem. And it's taxpayer subsidized.

This interview has been edited and condensed for clarity.