Reap the Benefits of Electronic Health Records, Not the Liabilities - Part 2

Thursday, October 16, 2014
By Lenis L. Archer, J.D., M.P.H., The Health Law Firm

In part one, I discussed how the recent United States Ebola crisis in Texas appeared to bolster the argument for those wary of the implementation of electronic health records (EHRs). To read that blog, click here.

Health information technology (health IT) brings both opportunities and challenges for healthcare providers. EHRs are one of the most debated health IT developments. The intent of such an innovative system is to replace archaic paper medical records. EHRs have the potential to modernize healthcare, streamline a physician's treatment process, reduce costs, and improve patient care.

However, like all technology, there are a slew of potential issues that could lead to physician mistakes or product errors. New technology can create unforeseen problems that may hinder patient care, but also get a healthcare provider in hot water. When lawsuits arise from malfunctions in EHR software, healthcare professionals are not fully protected from liability.

There are many legal pitfalls healthcare professionals should be aware of before adopting EHR programs into their practice's business model. Design flaws, complex templates, and careless use by healthcare professionals are factors that can lead to the headache of an EHR-related lawsuit. Being aware of the potential legal issues associated with EHRs, and taking proactive steps to prevent them, can safeguard a physician from losing valuable time and expense.

EHR Scenarios That Could Put You in the Legal Spotlight.

Regardless of whether malfunctioning software is to blame in the U.S. Ebola patient crisis, EHRs merit discussion regarding their proper usage and legal liability. The potential legal dangers, ironically, stem from the very functions meant to improve physician efficiency and care.

Healthcare providers should obtain a comprehensive understanding of the legal responsibilities associated with the use of EHR systems. The following list outlines scenarios a physician may encounter while utilizing EHR technology.
-    A physician over-relies on EHR software, but the data entered can become jumbled in translation leading to incorrect entries.

-    The EHR enables healthcare providers to quickly enter numerous progress notes in a patient's medical record. This intended benefit can also lead to an information overload making it difficult to decipher what the significant clinical information is in a file. You have a higher chance of overlooking a critical piece of information.

-    As in the U.S. Ebola crisis, information entered into a patient's EHR may be located in a broader network of records, but not in the doctor's file. A doctor may miss reported symptoms entirely, and fail to see information critical to a proper diagnosis and treatment.

-    The copy-and-paste function must be used with care. The ability to quickly move patient notes and sections from other records can be helpful, however, this can easily lead to missed details or the repetition of incorrect data.

-    Many EHR systems offer clinical decision support (CDS) alerts that are intended to alert healthcare providers when their orders deviate from a CDS guideline. Doctors may override these alerts, however, if an adverse event occurs in the care of the patient, a doctor must be fully prepared to document and defend his or her decision to override the alert.

-    EHR design flaws may be out of a physicians control, however, that does not provide immunity from legal liability. For example: many EHR systems are template driven and provide a regimented format intended to provide consistency and ease of information entry. However, these restrictions can prevent doctors from charting the patient's history completely and accurately.

-    Another potential EHR design flaw could bar a healthcare provider from properly communicating with another facility's EHR program. If a physician encounters issues in sharing a patients health records with another physician, this can lead to dangerous outcomes in care.

These scenarios are not intended to deter you from the use of an EHR system. This type of health IT can not only streamline your organization's business protocols, but also improve the quality and efficiency of care offered to patients. Rather, the purpose of the list above is to outline potential scenarios that a healthcare provider should be aware of when using EHRs.

As with all types of technology, if used with care, EHRs can be wildly beneficial to your organization.

Reap the Benefits Of an EHR System, Not the Liabilities. Here's How:

There are many steps you can take in order to maximize the benefits of technology while minimizing liability.

Before selecting an EHR system for your organization, research all vendors and review their purchasing and service contracts. Ensure that the system's features match the needs of your organization. Closely inspect contracts for terms that would place sole liability on you, regardless of the issue. Many EHR manufacturers have "hold harmless" clauses in their purchasing contracts. This clause protects the manufacturers against lawsuits and restricts a doctor's ability to publically raise questions about errors or defects of the equipment. If you are looking to purchase an EHR system, have an attorney experienced in contract review take a look at the manufacturers purchasing and service contract before you sign the dotted line.

Your staff and/or colleagues should be comprehensively trained in the EHR system before complete conversion from a paper system. Proper education and trial runs can prevent crucial mistakes. Ensure that all those in use of such technology are adept in using the program and are thorough and cautious in his or her entries.

Last but not least, healthcare providers should not overly rely on the use of EHRs. It can quickly become very comfortable with the ease of such technology. Remember, these devices do not have the critical thinking skills and logic of a human practitioner. These systems purely serve to improve file organization and efficiency of patient care. They do not replace your ability or expertise in properly diagnosing and treating a patient.


What is your opinion of using EHRs? Does potential liability make you hesitant in using such a system? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, pharmacists, pharmacies, optometrists, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, NPDB actions, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at

About the Author:  Lenis L. Archer is as attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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Lenis L. Archer 10/16/2014

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