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The Legal eHR [Extreme Caution Ahead]

Is there such a thing?

By Dr. David Edward Marcinko MBA CMP

[Editor-in-Chief]

Electronic medical and healthcare records [eMRs and eHRs] are a hot topic and the subject of many positive and negative posts and comments on this ME-P; and around the healthcare space. Personally, I am agnostic on the subject – trending against – for most physicians at this point in time.

In other words, the technology is just not there yet regarding “ease of use”, inter-operability, common transmission and security standards, and common platform, etc. This is reminiscent of the early days of the word processing industry, when I first used Edix-Wordex, Leading Edge, Word Perfect, Word Star, ASCII, PFR-Write, PC-Write, etc.  It was both exciting and confusing, being a writer and editor, at that time. Sorta like working in an electronic Tower of Babel; or using the many disparate eHR systems existing today?

I am not a Luditte, however. I’m a former American Health Information Management Association (AHIMA), and Healthcare Information and Management Systems Society (HIMSS), member. And, I’m certain that eHRs will be pervasive one day, but I’ll reserve my opinions, my money and information security, and my patient’s data until then. After all, I am a MSFT-Word® guy today as I thank Bill Gates for consolidating the formerly competitive, and chaotic, word processing software space. Yes, sometimes monopolies are a good thing! 

Malpractice Issues

Moreover, it seems I have been a Cassandra [the daughter of King Priam and Queen Hecuba of Troy] of sorts, crying aloud about the professional liability and medical malpractice issues of eMRS; here on this ME-P, during my speeches and lectures, as wells as in our books and CDs. All to no avail; until now!

Links: https://medicalexecutivepost.com/2009/12/23/will-electronic-records-raise-the-legal-standard-of-care-and-increase-malpractice-risk/

I suppose this is a product of my prior work as a licensed insurance agent for the State of Georgia, a malpractice reviewer, a court approved medical-legal expert witness, and author of the book: “Risk Management and Insurance Planning for Physicians and their Advisors”.

Link: http://www.jbpub.com/catalog/9780763733421

Assessment

Q: And so, is there a legal eHR and is it different from traditional eHRs?

A: You bet there is!

Read Link: http://www.himss.org/content/files/LegalEMR_Flyer3.pdf

Conclusion

And so, your thoughts and comments on this ME-P are appreciated. Think I am still mis-guided, or worse, paranoid? Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

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12 Responses

  1. Will Your EHR Land You In Court?

    Nice post Dr. Marcinko.

    Legally, of course, eHRs are double-edged swords: They may protect clinicians like us from medical malpractice litigation, but they may also put us at a greater risk, too!

    http://www.informationweek.com/news/healthcare/EMR/231602442

    Keep up the good work.

    Dr. BeLinda Beal Jamison

    Like

  2. Malpractice risks can unexpectedly rise with EHR use

    Dr. Jamison and Dr. Marcinko – Yes, electronic health records contain features such as templates, which can help providers reduce the risk of malpractice litigation.

    But, the misuse of templates, macros and cut-and-paste features can actually cause providers to be more vulnerable to such lawsuits.

    http://www.fierceemr.com/story/malpractice-risks-can-unexpectedly-rise-ehr-use/2011-09-29?utm_medium=nl&utm_source=internal#ixzz1ZZmoKNpw

    Dr. Clark Williams Billingsley

    Like

  3. Athenahealth To Pay Some Malpractice Insurance Premiums

    The jury’s out on whether electronic health records increase malpractice lawsuits, but some vendor pledges to help cut risk for some customers.

    http://www.informationweek.com/news/healthcare/EMR/231901718

    Rex

    Like

  4. Association to Study Liability Risks of EHRs

    The American Health Lawyers Association will sponsor a year-long research project to address patient-safety events and malpractice liability stemming from the implementation of electronic health-record systems, the association has announced.

    The goal is to produce tools and a checklist of best practices “to help minimize the occurrence of EHR-related errors,” according to an association news release. The research project is supported by a $45,000 contribution from the American Hospital Association-affiliated American Society of Healthcare Risk Management to the AHLA’s public interest committee.

    Source: Joseph Conn, Modern Healthcare [6/5/12]

    Like

  5. Most Medicare Docs Used EHR in 2011

    A majority of physicians participating in Medicare used an electronic health-record system last year, according to a recent government survey. HHS’ Office of the Inspector General randomly sampled 2,000 of Medicare’s physicians in 2011 and found that 57% of them were using an EHR at their primary practice location.

    The figure mirrors that from a 2011 annual report by the Centers for Disease Control and Prevention, which found that 57% of all office-based physicians were using an EHR system at their primary practice location.

    In contrast, the Medicare Payment Advisory Commission reported in April that only 25% of independent physicians had registered with the federal EHR incentive program, and 6% had qualified for payments.

    Source: Rich Daly, Modern Healthcare.com [6/24/12]

    Like

  6. Fewer Malpractice Claims When Docs Use EHRs

    A group of Massachusetts physicians saw a dramatic drop in malpractice claims after implementing electronic health-record systems, according to a research letter published by the Archives of Internal Medicine.

    Researchers from Harvard-affiliated organizations—including the Harvard Pilgrim health plan and Harvard Vanguard Medical Associates—merged closed claims data from a Massachusetts malpractice insurer for the years 1995 to 2007, with data from a random sample of physicians surveyed in 2005 and 2007. Researchers said 275 doctors were surveyed in 2005, and 189 were surveyed in both years. Among the latter group, just over 14% reported having been sued at least once.

    The study found 51 unique malpractice claims, with 49 reported before EHR implementation and only two after. Thirteen of the pre-EHR claims resulted in payments, while the two identified as occurring post-implementation did not. General surgeons accounted for 13 (27%) of the pre-adoption claims, while internists and orthopedic surgeons each had one of the post-adoption claims.

    Source: Andis Robeznieks, Modern Healthcare [6/25/12]

    Like

  7. How copy and paste in electronic medical records affects patient care

    With many hospitals and medical providers still in the early adoption stages of EHR, objections or problems with the various systems are still just coming to light.

    However, one particularly growing concern is providers using the copy-paste or copy-forward function in patient records. This is a shortcut that many physicians have found to be handy after the implementation of the new system, however using it actually can violate patient confidentiality and HIPPA rules, and lead to fraud or malpractice lawsuits and federal or payer audits.

    http://www.kevinmd.com/blog/2012/07/copy-paste-electronic-medical-records-affects-patient-care.html

    More importantly, the misuse of these functions can negatively affect patient care.

    Hope Rachel Hetico RN MHA

    Like

  8. Malpractice threat to EHRs

    EHR-related malpractice suits could threaten HIT adoption

    “HIT is like the nuclear energy of health reform. It has the potential for some advantages if we carefully control it, but it presents a clear and present danger when (not if) it goes out of control” – attorney Jim Pyles.

    According to the Washington DC patient privacy rights attorney Jim Pyles, the malpractice liability caused by EHRs arguably threatens the future of healthcare IT in the nation. Yesterday, he presented the national dilemma as a law question:

    “Darrell, you will have fun with this. My question is, who gets sued when the patient dies because the doctor could not get access to the current medical record?”

    I guessed that the treating doctor would be held accountable: “He or she would at least be a co-defendant, I would think. But then, I’m a dentist.”

    Jim replied, “I think the answer is (a) the doctor, (b) the hospital, (c) the vendor, (d) the power company, and (e) anyone else the plaintiff’s attorney can think to drag in. Great law school exam question. This will make the malpractice insurance industry pucker up. I have said before that the thing what will bring down the HIT industry will be when the malpractice insurers pull out. No one will want to go bare. HIT is like the nuclear energy of health reform. It has the potential for some advantages if we carefully control it, but it presents a clear and present danger when (not if) it goes out of control.”

    Have you noticed that presidential candidates never bring national attention to the successes of EHRs? Do you wonder why?

    D. Kellus Pruitt DDS

    Like

  9. Malpractice Discovery in the Age of EHRs

    Do eHRs have a tendency to put medical practices at risk for fraud investigations and medical liability issues?

    http://www.physbiztech.com/news/fraud-medical-liability-issues-demand-practices-show-and-do-ehr-dictates?email=MARCINKOADVISORS@MSN.COM&GroupID=90115

    Find out what one expert thinks.

    Ann Miller RN MHA

    Like

  10. EHR Fraud and Abuse?

    Did you know that soon after The New York Times published its front-page article in September, about the substantial increase in Medicare reimbursements for many hospitals after EHR implementation, HHS Secretary Kathleen Sebelius and US Attorney General Eric Holder put hospitals on notice that instances of fraudulent behavior in connection with EHRs would be subject to criminal charges—and that steps would be taken to ferret out this type of fraud.

    http://www.kevinmd.com/blog/2013/01/protect-fraudulent-ehr-documentation.html

    Ya think. Fee generating engines; all.

    Dr. David Edward Marcinko MBA
    http://www.BusinessofMedicalPractice.com
    [Editor-in-Chief]

    Like

  11. HHS

    HHS offers a doggie biscuit in one hand while clenching a rolled up newspaper behind the back.

    Darrell

    Like

  12. Will EHR data stand up in court?

    Given that the data within electronic health records is used to determine payments and to represent events in a litigious atmosphere, lawyers suggest that doctors may cast things in the best light, thereby undermining the record’s reliability.

    http://www.govhealthit.com/news/will-ehr-data-stand-court?topic=08&mkt_tok=3RkMMJWWfF9wsRonvqXIZKXonjHpfsX56O0kXK6zlMI%2F0ER3fOvrPUfGjI4ARMNrI%2BSLDwEYGJlv6SgFQ7LHMbpszbgPUhM%3D

    Agree; or no?

    Ernest

    Like

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