Hidden Legal Risks For Doctors In EMR Use

Posted on February 17, 2012 I Written By

Anne Zieger is veteran healthcare consultant and analyst with 20 years of industry experience. Zieger formerly served as editor-in-chief of FierceHealthcare.com and her commentaries have appeared in dozens of international business publications, including Forbes, Business Week and Information Week. She has also contributed content to hundreds of healthcare and health IT organizations, including several Fortune 500 companies. Contact her at @ziegerhealth on Twitter or visit her site at Zieger Healthcare.

Medicine is a risky business, and malpractice suits one of the nastier part of the trade. Whenever something major changes in the way medical care is delivered — including, say, the use of EMRs — it makes sense to expect the worst.

That’s exactly where Dr. Sam Bierstock stands. Bierstock, an interesting guy whose act includes a blues band performing songs on the perils of managed care and EMRs, is going national with his view that EMRs are opening up  bigger med mal liabilities than doctors realize.

“What few people realize is that using an EHR exposes physicians to an Orwellian level of analysis of every single act while doing their job,” writes Bierstock, who nonetheless sees himself as an EHR advocate.  As he rightfully notes, EHRs can be audited to see how long it took a physician to respond to an abnormal lab finding, to find out what doctors said in internal e-mails or even whether they scrolled down an entire screen before closing a document.

To my (admittedly limited) knowledge, there have not yet been any major lawsuits based actions doctors took which can be pinned specifically on the use of an EMR (other than, perhaps, HIPAA breaches). But it does seem credible that such suits are on the horizon. After all, not to be too cynical, but medical malpractice lawyers do work on commission, and if I were them I’d see this as an opportunity.

In his commentary, Bierstock argues that there must be “meaningful tort reform” before physicians can safely use EMRs. The question is what reforms are the right ones.  To date, I haven’t seen model legislation, much less a live bill, which directly addresses this issue.  Do any of you have more information to share, readers?

P.S.  OK, I was wrong about there being no case law on this subject. Here’s at least one example where a physician allegedly altered an EMR audit trail to make it appear that a problem had been flagged.