Beware of Liability Pitfalls of Electronic Health Records

Article excerpt

WASHINGTON -- From a liability perspective, health information technology remains a double-edged sword whose parameters still need to be spelled out, experts said at a meeting sponsored by eHealth Initiative and Bridges to Excellence.

"It's going to provide protection in some places and increase liability in others," said attorney Marcy Wilder, a partner with Hogan & Hartson.

When it comes to electronic clinical decision support (CDS) tools, Jud DeLoss, vice chair of the HIT Practice Group at the American Health Lawyers Association, recommended that physicians document their reasoning when they disregard the tool's suggestion.

Although it would be "difficult to pull off," attorneys could create a class of victims for whom they argue that clinical decision support was not followed, leading to detrimental results, he said. Conversely, attorneys could charge that a physician overly relied on the tool "and did not actually engage in the care they said they did."

Ms. Wilder pointed out another gray area created by HIT: delineating who contributed what sections to a patient's electronic health record.

"Look at the paper system," Ms. Wilder said. "We have handwriting and signatures, which are simple tools to identify who's responsible for which clinical applications, which provider made the diagnosis, who authorized the medication change. It is both easier and more difficult to do that with electronic health records. …