By Bayley Weese
The next time you step into your doctor’s office, you will notice the paper records in filing folders that used to overfill shelves are gone. In their place, electronic medical records have emerged as a means to make health care both safer and more efficient. These electronic medical records include all aspects of a patient’s care including their family history, current medical diagnoses, prescriptions, allergies, etc. Through these online records, administrative staff can make appointments, nurses can update health problems, and doctors can order prescriptions all in one place. Despite this new digital efficiency, electronic medical records have started to cause serious problems resulting in an increase in medical liability claims with a question of who to blame: the doctor or the software company.
The health care industry is no stranger to mistakes. Before electronic medical records existed physicians had no choice but to use paper, which was easily lost and sometimes unreadable to the next attending physician or nurse. Paper records undoubtedly led to sometimes-fatal errors. Electronic medical records intended to fix these problems and were eagerly adopted by hospitals and private practices across the country during the 2000’s. In 2009, the United States government even appropriated $35 billion to incentivize medical practices to transition from paper to electronic medical records under an economic stimulus bill.
Today, more than half of doctor’s offices and hospitals across the country have made the switch to electronic medical records and are now just beginning to realize some of the severe negative effects. Hospitals are running into problems with electronic medical records due to their especially fast-paced environment. The problems arising out of electronic medical record use mostly involve prescriptions. For example, when medical record software shows an empty bed when there is in fact a patient waiting in it, that patient never gets their medicine ordered. Prescription default settings are also causing a problem when a health provider doesn’t notice the pre-set setting and then accidentally orders a patient more or less of a drug. When these incidents happen, patients very clearly have a resulting liability claim. The real question, however, is whom they have a liability claim against.
The aggrieved patient is now stuck with the decision of blaming the health provider for making the mistake or the software for enabling that provider to make such a mistake. These problems arising from electronic medical record usage are so diffuse that their solution may not lie in one single party. Contracts between the software company and the health center generally bar the health center from bringing a suit against the electronic medical record company due to a provision called a “learned intermediary.” What this means is that while computers carry information and supply the programming, it is up to the medical professional to make sure the standard of care remains high.
Right now, the number of lawsuits arising out of electronic medical records is relatively low, only about 1%, but that number is growing. Normal liability suits take about three or four years from the date of the incident to filing, and an increase in lawsuits in the coming years will reflect the growing usage of electronic medical records in the past few years. Attorneys representing these patients are now looking for a way to bring about significant change in patient safety – by suing a big electronic medical record company, and forcing them to finally take doctor’s frustrations with the systems seriously.
Student Bio: Bayley is a 2L at Suffolk University Law School with a concentration is Trial and Appellate Advocacy. She is a Staff Member of the Journal of High Technology Law and a Team Member of Suffolk’s National Health Law Moot Court Trial Team.
Links: http://www.politico.com/story/2015/05/electronic-record-errors-growing-issue-in-lawsuits-117591 and https://www.buzzfeed.com/stephaniemlee/ehr-patient-safety?utm_term=.ptX58nVY4#.tn20DbWle
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
