Sorry, but this is the best image I could find that combines EMR and Fear! (Apparently there is a movie dealing with this…click the image if you’re bored.)
I’ve been in favor of the EMR concept for many years, and in fact I’ve been howling for a regional if not national PACS database since I started blogging. My enthusiasm has been tempered somewhat by Meaningful
AbUse, which I take to be nothing more than our very own US Government bribing us to create databases they can ultimately tap. Hey, just because you’re paranoid doesn’t mean they aren’t out to get you!
While I’ve been fretting the government’s hand in the EMR frenzy, I sadly forgot to look over the other shoulder to see what our dear friends the trial attorneys might do with this technology. Fortunately, Leslie Kane, MA of Medscape looked into this issue, and discovered some very unsettling material:
Picture this: You’ve been sued, and now the plaintiff attorney has the right to send in an expert to sit at your computer and examine information in your electronic health record (EHR). Besides any mistakes you might have made, system-wide bugs or design flaws that lead to data inconsistencies could be found and held against you in the discovery phase of a malpractice lawsuit.
Yup, folks. Picking the wrong EMR could get you sued, and if you happen to get sued for something else, the EMR could drag you down even further.
“Every aspect of EHR selection, implementation, and use may be examined in the course of medical malpractice discovery to uncover the source of the incident, or undermine the records that are being presented in defense of the malpractice claim,” says Ronald B. Sterling, CPA, MBA, national EHR expert, Silver Spring, Maryland, and author of Keys to EMR Success(Greenbranch Publishing; Phoenix, Maryland; second edition, 2010). “Anything could be a malpractice issue, from the product itself, the way it was set up, or how you’ve been using it.”
“Even if the practice does everything perfectly, there could be design flaws in the electronic health record or the way the practices uses it or sets it up. This gets exposed in the light of discovery during a malpractice suit. If the plaintiff attorney spots errors in the record — even if the system, not the physician, creates them — it calls into question every record you produce and every statement you make.”
Once an investigator starts looking into your EHR, there’s no telling what they might find. Even though the scope of what they can legally look at is limited, they can compare printed paper records with what appears on your screen.
Oy. Do read the entire article for a list of the various ways in which EMR owners can get in trouble.
Perhaps you think the vendors will help you out of the little messes they’ve created. Think again…
“The doctor can be held liable because most vendors’ contracts (signed by the physician) essentially say, ‘We do not practice medicine; it is up to the physician to make sure this EHR is being used correctly.’ The practices have to understand what they’re using and verify that the system is appropriately set up to document the care they provide…”
In a trial, the doctor would be held responsible for product problems.
But just as scary, doctors could be held responsible for following vendor instructions. “I’ve seen situations in which the vendor tells doctors to do something, and doctors are relying on vendor and not doing their own proper analysis and design of the EHR that’s tailored for their own practice,” says Sterling. “The vendor is not the one responsible for maintaining the patient’s medical record.”
Basically, you can’t win. But here’s one piece of advice:
Document your selection process for your EHR. This will show that you did due diligence to pick the appropriate product. In a malpractice trial, if you’ve chosen an EHR system that does not provide the information you need in the way you want it, this will count against you as far as back as why you ultimately selected that system.
That’s assuming you DID do your due diligence in the selection process. No, “no one ever got fired for choosing (fill in larGE company here)” will NOT cut it in the courtroom.