EHR medico-legal liability: to fear or not to fear?

We have witnessed of late a big surge in the volume of articles and white papers addressing EHR-related medico-legal liability issues. Many are being taught actively in law schools. In one course I am familiar with, the basic strategy is to find any piece of conflicting information and use it to invalidate the whole medical record, leaving the litigant effectively with no defensible record. These are significant issues, ones we take seriously in the design of our software, activEHR. 

One of the top examples of conflicting information is different findings over time in the Review of Systems (ROS), History of Present Illness (HPI) and Personal, Family & Social History (PFSH). The simplest and most straight-forward solution is for the EHR to combine all areas where known conflicts regularly occur. In activEHR, for example, we incorporate the Review of Systems and Medical History into the problem list, limiting how often we move medical information within the exams. It is extremely complex for an EHR to maintain automatically the consistency of this information, and a heavy burden for providers to have to do it clinically.

At first glance, it would seem that the medico-legal aspects of an EHR should cause providers to shy away from them, but there is a flip side. Since paper charts can’t do as much as electronic, the same EHR courses at the same law schools also teach legal strategies for a litigant who comes to court with a paper chart. It is now becoming much easier to make a legal argument that the doctor is not up-to-date or using the latest technologies as demonstrated by the continued use of paper records. The health system has well documented evidence that electronic records provide important Clinical Decision Support (CDS) capabilities not available in paper charts. Therefore, for providers, there are pitfalls in both directions. The best solution is an EHR that's designed to limit liability and continues to provide a path toward portability, best-practice CDS, and transparency.

Jim Grue, O.D.