EHRs offer significant medicolegal benefits-and risks

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act, which included the Health Information Technology for Economic and Clinical Health (HITECH) Act. Under the HITECH Act, the U.S. government will financially reward physicians who purchase and demonstrate "meaningful use" of an electronic health record (EHR) system. The goal is to achieve an interoperable longitudinal EHR for most Americans by 2014.

Along with their ability to standardize and improve record keeping and communication, EHRs also have medicolegal implications, both benefits and possible drawbacks. This article puts the medicolegal implications of EHRs into perspective for practicing urologists.

From a medicolegal standpoint, the benefits of EHR usage by urologists are significant. An electronic system gives one the ability to access a legible patient record that has standardized documentation, leading to improved communication and decreased errors.

Use of EHRs also can lead to decreased medical malpractice insurance premiums. An audit of the EHR can be used not only for quality assurance, but also peer review and electronic discovery in cases of litigation. Most new systems automatically notify the health care provider of laboratory and radiologic results. Many systems can also track orders, referrals, and patient visits (J AHIMA 2008; 79:48-52). New EHR systems have evidence-based clinical decision support reminders to help guide providers in patient care.

Increase in legal liability?

Given all these innovations, some physicians fear an increase in legal liability due to EHR usage. Although the EHR contains broader and more robust documentation, the increased breadth of data and the possibility of "data mining" by plaintiffs might increase the perception of malpractice risk associated with their use. Interestingly, however, in cases where an EHR was used, more than half of providers considered the EHR as helpful to the defense (J AHIMA 2008; 79:48-52).

Still, concerns over increased liability are not necessarily unfounded. The Health Insurance Portability and Accountability Act (HIPAA) concerns the security and privacy of patient records. Physicians can be liable for HIPAA violations in both office and hospital EHRs (J AHIMA 2008; 79:24-8; J AHIMA 2007; 78:64-5). Storage and preservation of EHRs are especially important if there is a claim of malpractice. The rules of discovery involving electronic records are very specific, and failure to follow them can result in serious penalties and sanctions (Hosp Health Netw 2008; 82:10).

One must not forget that e-mails are discoverable as well. If a physician chooses to communicate patient information via e-mail, the network must be secure. Also, if e-mail is used to convey medical advice or information to patients, the correspondence should be saved to the patient's EHR. Without the saved e-mail, litigation could simply come down to the physician's word against that of the patient.

Documentation still key

Even with this new technology, the basics do not change. Good communication, good documentation, and good patient care usually lead to a strong defense. Documentation still stands as the most important defense against malpractice suits. Bad records, coupled with bad results, will lead to a bad legal outcome.

It is important to document patient care chronologically. With electronic records, all notes are time stamped, so there is no question as to when they were written and amended. The key is to make sure that acknowledgement of results, including all actions and inactions, are properly documented in the EHR. A court is more likely to believe the physician when there is a note in the chart stating that the patient was informed of a result or the need for a referral or follow-up.

A delay in dictating the operative note, office note, or daily progress note will be obvious. Also, amending or altering a previously written note under certain circumstances may look questionable, especially when an adverse event has occurred. This is not to say that notes in the EHR should not be corrected and amended, as they may contain mistakes. The key is to make those corrections as soon as the error is noted.

Informed consents that are electronic and procedure specific are better than generic paper consents. Electronic procedure-specific consents that mention the exact complication being reported by the patient are much easier to defend.