Will eMRs Raise the Legal Standard of Care and Increase Malpractice Risk?

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Focus on Malpractice and Professional Liability

By Ann Miller; RN, MHA

By Dr. David E. Marcinko; MBA

[Executive Director]

We first postulated on this topic in our print book “Insurance Planning and Risk Management for Physicians and their Advisors.” Additional posts and comments are contained within this ME-P.

And now, Robert J. Mintz, JD wonders if medical provider liability increases with eHRs, even if the quality of care is vastly improved?

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15 Responses

  1. Merry Christmas, everyone! – Darrell


    Chris Towery – The last of the freelance eHR advocates

    I miss the good ol’ days when slow-moving eHR champions, always easy to pick off from miles away, were in abundance on the Internet like oblivious buffalo on the pre-Colombian Plains. All one had to do was fire into the herd and you were sure to wound at least a handful.

    These days it’s unusual to find freelance journalists like Chris Towery, who will say anything necessary about something they know nothing about if the money is right – or if there are Christmas bills on the horizon (?).

    Today, Mr. Towery posted an article on the Chiroeco.com Electronic Health Records Resource Center titled “Moving to EHR benefits both DCs [Doctors of Chiropractics] and patients: Part I.”


    At the end of his article, after promising that in part 2 he’ll share a list of the top benefits eHRs will bring to patients, Chris Towery offers a short bio:

    “Chris Towery is the former associate editor of MASSAGE Magazine and is currently a full-time freelance journalist. He has written hundreds of articles for more than 20 different magazines, newspapers, and custom publishers. Much of his recent writing has been for the complementary and alternative healthcare industry. To contact Chris, email cmreuben@yahoo.com.”

    I don’t know much about the business of Chiropractics, but I know eHRs make no more sense in that profession than they do in dentistry. Towery would never get away with publishing his piece on a dental site, much less a physician’s site where many of those who have to use eHRs are fuming about them.

    While in the mood to cull the herd of slow thinkers, here is what I submitted to be posted following Towery’s article. I haven’t had an opportunity like this in a long, long time. I think freelance journalists should be held accountable for what they write. What do you think?


    Mr. Towery, I protest that your article is full of fallacies and misleads readers for the purpose of bringing profits to your boss.

    “Electronic health records (EHR) software, however, is the high-tech innovation that will likely play the most prominent role in the chiropractic industry over the next few years.”

    – Electronic health records (EHR) software, however, is the high-tech innovation that will definitely play the most prominent role in the chiropractor’s free time and extra money if foolishly purchased over the next few years. EHRs will not make healthcare cheaper, better nor safer.

    “Because the government now mandates US healthcare practices make the switch to digital record-keeping in the coming years, eHR is one technology all DCs will become quite familiar with in the near future.”

    – Just because it’s mandated don’t mean it’s so. Let’s see the government force providers to buy expensive, dangerous tools which don’t work. Just how will that be accomplished without infringing on Constitutional Rights? The argument that eHRs are going to happen no matter what is of course, time-related. It’s a sure bet that it will happen in the future, but not in a few years. If the nation continues in the same direction it is going right now, universal adoption of eHRs will be… never.

    For example: How is the determination of meaningful use coming along in CCHIT-certified eHRs for chiropractic care?

    “… the fundamental reason for the move [to eHRs] has been to modernize our country’s healthcare system.”

    – Wrong. The fundamental reason for eHRs has been for political/economic interests of stakeholders in HIT like Chris Towery’s boss. Let’s not allow those with interests in billions of dollars in stimulus money insult us with harmful misstatements. At this time in history – just a couple of months before HITECH HIPAA gives providers the business end of political HIT promises – it is simply irresponsible for a freelance journalist to encourage providers to invest in paperless practices.

    “HIPPA (sic) Compliance. EHR software is designed to be 100-percent compliant with all HIPPA regulations. Moreover, any future changes in the law will be automatically updated within the system.”

    – Are you kidding me? This statement stinks in so many ways. Wouldn’t it be nicer not to be bothered by HIPAA at all?

    “Decreased errors. In addition to providing medical records that are easy-to-read and interpret, EHR systems also come with error alerts to prevent and correct mistakes.”

    – Before you casually use this selling point to lure naïve doctors to purchase your boss’s product with hopes of better serving their patients, how about showing us one study which supports your statement. Not that I don’t believe freelance journalists, it’s just that I’m beginning to think some will say anything necessary to make a sale.

    The author, Chris Towery is a full time freelance journalist. Had the freelance journalist done any research, he might have spared his journalistic reputation. Let’s be careful out there. Don’t let the special bastards catch you.

    I’m looking forward to part 2, Chris Towery.

    D. Kellus Pruitt; DDS


  2. Babe Ruth pointed to the center field

    On Thursday, two days ago, I posted “Chris Towery – The last of the freelance eHR advocates,” in which I boasted that I could somehow hold freelance journalists like Mr. Towery accountable for what they write about eHRs they don’t understand and don’t bother to fact-check.

    Although nobody stood up to call a bullshit on me, I don’t think everyone following this thread really believed my confident assertion. So let me share with you a rumor I’m starting that will never be disputed:

    This morning, Chris Towery was eating his oatmeal when he happened to do an ego search of his own name. Half-way down his first page on Google my article caught his eye and his cat caught his oatmeal.

    My article I posted on Pruitt’s Platform which contains my comment he continues to refuse to post following his article on Chiroeco.com, moved from Towery’s number 14 hit to his number 5 hit overnight. As fast as it’s moving, I think it will make it to his number 1 hit within two weeks – especially if I lean on his name a few times. That can’t be good for the freelance journalist’s reputation. Regardless what happens now, Chris Towery will wear his mistake for a long, long time.

    It is my opinion that it is morally wrong to allow sloppy journalism to pass by without helping it along to its destination as swell entertainment for sports fans. I don’t mind uncovering comedic talent as long as nobody complains about my style. I could be very sensitive about such criticism.

    D. Kellus Pruitt; DDS


  3. Where’s freelance journalist Chris Towery hiding?

    It’s been 5 days since I submitted my comment to journalist Chris Towery that I featured in “Chris Towery – The last of the freelance eHR advocates.” (Pruitt’s Platform)


    So far, he has refused to post the response to his PR piece “Moving to EHR benefits both DCs and patients: Part I.”


    Nevertheless, the Chiroeco.com editor continues to encourage Towery’s readers: “Be the first to comment on this Article.”

    What can possibly be Towery’s excuse for not posting my challenging response, just before defending his own reputation point by point? Do you think he hasn’t yet discovered that I have taken this engagement to other venues that actually experience readership? Has he not noticed that my Pruitt’s Platform article is his 7th hit when he googles his name? It’s not his first hit, but my article beats anything freelance journalist Towery has published by at least 2 pages. His lack of an Internet presence – other than my assist – makes me wonder how much experience Towery has actually had in the PR business.

    If Towery neglects to guard his own brand by simply paying attention, does he not have any friends or colleagues who respect him enough to take him aside and warn him that I’m giving him a public spanking that’s going to hurt for a long time?

    For those considering PR careers, what does Towery’s silence tell merciless sports fans about the PR hack’s confidence in the product he splurged his reputation on?

    Chris Towery promises that in Part 2 he’ll provide a list of the top benefits eHRs will bring to chiropractic patients. (I bet he neglects to mention the life-threatening consequences of identity theft). I’m looking forward to presenting more wholesome community fun soon.

    Before Internet communications, even the latently empowered had no recourse when faced with Towery’s kind of PR crap. Writing waste basket-bound letters to the editor, muttering to oneself and kicking the cat is hardly as much fun as demanding personal accountability from a target in the presence of neighbors and kicking the cat. It sort of establishes an unwritten local ordinance for keeping litter off the streets and cats out of the freakin’ garage.

    D. Kellus Pruitt; DDS


  4. eMRs will be a medico-legal disaster.


  5. The current reality is that medical records perform a billing function. It can even be argued that this function takes precedence over the original purpose – to record the medical care and thought process of the physician.

    My personal experience reinforces this argument. In my first experience with an EMR system, we were taught to record the appropriate number of bullet points with the acceptable wording to justify the level of care being billed. We learned to link tests to diagnoses in order receive payment, and we were given the proper language to use in order to bill for a consultation or a procedure. I recall a conversation with a colleague several weeks into the implementation process. He suggested that we all make a point to type a sentence or two at the end of the “canned” EMR bullet points – a short statement describing our thoughts about the patient and their disease, so that the next physician will understand the first provider’s thought process.

    Physicians still provide excellent quality of care, but when it comes to the medical record, we have taken over the functions of transcriptionists, unit clerks, and billing departments!

    Brian J. Knabe, MD
    Savant Capital Management, Inc®.
    190 Buckley Drive
    Rockford, IL 61107
    Tel 815-227-0300
    Fax 815-226-2195


  6. Gosh Dr. Knabe

    You make it sound as though the actual patient – rather than billing for the medical condition – is an after thought when you say:

    He suggested that we all make a point to type a sentence or two at the end of the “canned” EMR bullet points – a short statement describing our thoughts about the patient and their disease, so that the next physician will understand the first provider’s thought process.

    So yes, with this attitude, I hope eMRs do raise malpratice concerns!
    Doctor … look at ME!

    A Patient


  7. Malpractice Costs Pegged at Over $55 Billion

    Medical malpractice costs average about $55.6 billion annually, or 2.4% of annual healthcare spending, according to a Health Affairs analysis. The estimate includes defensive-medicine activities, such as ordering tests or treatments by physicians in order to avoid lawsuits, which alone costs about $45.6 billion a year, the study found.
    The real cost of medical liability has been widely debated, according to the study published in the September issue of Health Affairs. Some studies have shown that on one hand, healthcare “is rife with errors and avoidable injury to patients.

    On the other, doctors and hospitals fear frivolous lawsuits and resent high malpractice insurance premiums.” Tort reforms such as capping non-economic damages could reduce liability costs, but are likely to have little effect on overall healthcare spending, the study found. In the meantime, reform proposals such as moving away from fee-for-service reimbursement could have a greater impact.

    Source: Jennifer Lubell, Modern Healthcare [9/7/10]


  8. Only 1 in 15 Docs e-mails Patients According to New Study

    Drs. Pruitt and Knabe,

    Despite indications that e-mail access to physicians increases patient satisfaction, only 6.7% of office-based physicians routinely use e-mail to communicate with their patients, according to a report from the Center for Studying Health System Change.

    The report is based on a 2008 survey of 4,258 physicians. Only 34.5% of survey respondents said their office was equipped to handle electronic communication about clinical issues with patients, and among them, only 19.5% reported e-mailing with patients routinely.

    Barriers to using e-mail included lack of reimbursement and concerns about increased workload, maintaining data privacy and security, and avoiding increased medical liability. Avoiding e-mail did not necessarily correspond with an avoidance of information technology. The survey also found that 76.6% of physicians had electronic access to lab, radiology or other diagnostic tests, with 61.8% using that application routinely; 56.8% had electronic access to patient notes, medication lists or “problem lists”; and 42.2% had access to electronic prescribing tools.

    Source: Andis Robeznieks, Modern Healthcare [10/7/10]

    With all due respect; is email a malpractice risk factor?



  9. Do you think maybe Americans have been led to expect unrealistic benefits from HIT in exchange for votes?

    It’s a typical healthcare reform misconception inspired by lofty expectations from digitalization of patients’ records that emails from busy physicians will require little time or consideration to be safe for their patients. And yes, bad answers will lead to malpractice suits – and the evidence will be just a click or two away.

    Thoughtful consideration cannot be rushed, and nobody should expect it to be free, in my opinion.



  10. The Electronically Empowered Patient

    Do patients search for healthcare information online before consulting the doctor? I suggest that you go ahead and ask them — the answer may surprise you.

    It used to be that patients needed to make an appointment with their doctor if they had questions about their health. And, physicians weren’t just comfortable with that arrangement, they were empowered by it. But, perhpas not so much anymore.


    Now Wendy, contrast this report with your comment above.



  11. Yep! It’s TrueDoctors remain hesitant to email patients

    Reimbursement issues and privacy concerns rank among the top reasons why only about 7 percent of the more than 4,200 physician practices surveyed by the Center for Studying Health System Change revealed they regularly used email to communicate with patients.


    Any other thoughts?



  12. EDRs and Malpractice

    On top of everything else, EDRs can make defending a malpractice case more difficult than paper records.

    “When EHRs Meet Malpractice Suits: New Concerns – Electronic health record data stores bring legal liability fears, logistical headaches for healthcare organizations, attorneys say.”

    By Neil Versel for InformationWeek, August 17, 2011


    “EHRs make patient information more readily accessible to far more people than any paper chart stashed away in a filing room. They also change how and to what extent medical professionals document patient encounters and add in safety-related features such as clinical decision support.”



  13. EHRs increase malpractice risk?

    EHRs can wreak havoc on a medical practitioner’s clinical documentation of patient care, exposing the provider to malpractice claims, warns HIT author Ron Sterling, in an article posted on hitechanswers.net.


    Of course, we’ve written about this before and in our risk management book:


    Dr. David Edward Marcinko MBA CMP™


  14. Lower Malpractice Pay-Outs

    Taylor Lincoln reported malpractice payments in 2012 were as follows:

    • Total number: 9,379, versus a high of 16,565 in 2001
    • Total value, unadjusted: $3.14 billion, versus a high of $4.41 billion in 2003
    • Total value, Consumer Price Index-adjusted (2012 dollars): $3.14 billion, versus a high of $5.68 billion in 2001
    • Mean payment value, CPI-adjusted (2012 dollars): $335,127, versus a high of $361,738 in 2003



  15. Risk of EHRs: Malpractice Claims

    One can wonder about the impact of EHRs on medical malpractice rates. And so, this author asked a malpractice carrier what he thought, almost a decade ago.


    The answer was that it would be years before anyone could really tell. After that decade, is then, NOW!



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