EHRs are legal records that can be used against providers in court

Legal cases

Much of the focus on electronic health records has been about their adoption and the requirements of the Meaningful Use program, but many providers may not realize that EHRs also represent legal records that can impact medical malpractice litigation.

While malpractice involving paper medical records often dealt with illegible clinician notes or confusing abbreviations that lead to errors, EHRs often involve other kinds of mistakes, such as those made by hitting the wrong item on a drop down menu, an article in Healthcare IT News outlines.

Another problem with EHRs in malpractice litigation stems from the inability of providers to prove that they made a clinical decision based on information in front of them in the tool. What's more, according to the article, printouts of an EHR, which can run to thousands of pages, do not look the same as when a clinician actually uses the software.

Jodi Daniel, an attorney at Crowell & Moring in the District of Columbia and former policy director for the Office of the National Coordinator for Health IT, says she’s anecdotally heard about physicians settling malpractice lawsuits, not because they were guilty, but because they couldn’t use the EHR to prove that a decision they made was based on the information available to them at the time, according to the article.

“They couldn’t demonstrate what they did and why they did it,” Daniel says. “They were forced to settle to make the problem go away.”

The article notes that there are still no clear-cut standards for the use of EHRs in discovery or as evidence in court. Those interviewed suggest that providers have policies regarding the EHR as a legal record.

Other ways EHRs can increase provider’s malpractice liability include inappropriate use of copy and paste, which can create inaccurate records, and failure to document why a provider overrode an alert.