The advent of electronic records has established a new opportunity for errors, which some have called Electronic Health Record (EHR) malpractice, and a new exposure for both medical malpractice insurance underwriters and for Cyber Risk Insurance underwriters.
Health records are a critical component of any medical malpractice case, and can be beneficial or detrimental depending on how well the records are maintained. And these health records are all going electronic. Medical practitioners utilize and rely on electronic health records to provide care, and inaccuracies in the records can have significant consequences, both legal and operational. Health records are critical in medical malpractice litigation (see here):
In the overwhelming majority of cases, health records are the “single-most important piece of evidence” in medical malpractice lawsuits
Attorneys are recognizing the potential impact of EHR liability (see here):
Computer malpractice can happen as a result of technological glitches, human error and system design defects; it can threaten the quality of patient care and safety, as well as the safety of patients' health data.… Medical malpractice lawyers need to be aware of the potential for "EHR malpractice" and should familiarize themselves with the potential pitfalls, from software system selection to its implementation and use.
One medical malpractice insurer notes (see here):
The Doctors Company supports the integration of the electronic health record (EHR) into medical practices and believes it has great potential to advance both the practice of good medicine and patient safety. However, there are always unanticipated consequences when new technologies are adopted—and the EHR is no exception. Real and potential liability risks are beginning to be recognized, and it is important for physicians to become familiar with them.
Examples cited (see here):
- A prescription for a short-acting drug is entered into the computer as the long-acting version. The order is refilled six times based on the erroneous information.
- When converting to electronic records, a doctor’s office omits a patient’s aneurysm history from the active problem list. During a medical procedure several years later, the aneurysm bursts. The specialist has been unaware of the patient’s risk.
- Nursing notes for an entire shift vanish after a computer crash, compromising care.
Built in efficiencies can create problems (see here):
problems arise… in the use of templates, which automatically fill in information that may not be correct. In one case, the template in the electronic health record indicated a patient had had hip surgery, when the surgery was on her spine.
EHR will also lead to more complexity in claims involving EHR liability because it may be difficult to prove the cause of the error. Claims from EHR liability will not be limited to physicians’ medical malpractice insurance. EHR liability may also impact health systems, third party technology and service providers and allied healthcare practitioners. And it is probable that some claims will be brought under Cyber Risk insurance policies in addition to medical malpractice insurance and healthcare errors & omissions (E&O) insurance policies.
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