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Will Electronic Health Records Become the New Standard of Care?
(And How Worried Should You Be If They Do?)
By Paul T. Smith
[February 2006]
In 1928 the tugboat T.J. Hooper lost its barge of coal in a storm off the Jersey Coast. The boat did not have a radio on board. The owner of the cargo sued the tugboat owner for damages. The court found that a radio would have received warning of the storm and allowed the boat to seek shelter. Radios at that time were new and had not yet been generally adopted by tugboat operators. Nevertheless, the court found the tugboat owners negligent: radios were available and effective, and the industry could not set the legal standard by lagging in the adoption of technology.
The same may soon be said of electronic health records (EHRs). EHRs hold out the promise of a leap forward in quality of care: up-to-date health information aggregated from all the patient’s providers; on-line clinical knowledge-bases; computerized order entry; and decision support systems that promote best practices and help avoid mistakes. If an inexpensive EHR can fulfill this promise, a provider may be hard pressed to defend a claim that could have been prevented by the use of readily available technology.
But providers worry that EHRs will also bring new liability risks:
Where is the health record? The adoption of an EHR involves a transition from paper records or electronic records kept on legacy systems. During the transition the record may be a mix of paper and electronic data, and may reside in more locations than one. Even after the electronic record is implemented, some data may be kept apart, as a matter of design or habit. And practice among users may differ, some preferring to work on-line and others to print out records. Administrators should educate users so that they understand what and where the designated record is and should foster realistic practices that take account of user preferences and habits.
How stable is the health record? There are different ways to aggregate health records, ranging from a centralized data repository to a system that maintains little more than a patient index and fetches information from distributed sites on request. In either case it may be difficult for a provider to replicate the health record that was presented at the time a treatment decision was made. Data in a central repository may have changed in ways that would be apparent in a paper record, but not in a poorly-designed electronic one. And if another provider has stopped participating in a distributed system, patient records may simply no longer be available. A well-designed system should preserve data that was produced in response to a specific request, or be able to re-create it reliably. Contracts with participating providers should establish the right of the system to maintain copies of health information accessed through the system even if the provider stops participating.
What about the context? EHRs are not just about health records – they are also about decision support. This might range from on-line reference works and research to clinical protocols, menus of treatment options, and alerts for allergies, drug interactions and dosages. As the system changes, will the practitioner be able to recreate the environment in which the data was presented at the time the treatment decision was made? An EHR system should preserve not only health information, but also the context and decision support features in which it is presented, as well as the provider’s reasons for making decisions that are not consistent with the support features.
Integrating email. Many providers use email to communicate with patients and other providers. Practice varies widely – some providers do not use it, or use it only for administrative purposes, such as scheduling; others consult via email. If email is used for diagnosis or treatment, that email effectively becomes part of the health record and should be integrated with the EHR. Providers should have policies on the appropriate use of email. An EHR system that offers a means of on-line communication with patients and providers should capture important communications and integrate them with the health record.
Decision Support. Decision support systems can improve quality of care, but they are only as good as the underlying knowledge base and rules. It may be difficult to evaluate the quality of the content and the programming. Moreover, practitioners may be concerned that the system in some way substitutes for their own professional judgment, and sets a standard of care from which they deviate at their peril. How does the system deal with a provider’s decision to disregard or overrule an electronic prompt? Decision support systems should be an aid to practitioners, not an imposition, and should not be made a substitute for professional judgment.
Is There an Expectation of a Complete Record? One of the benefits of electronic health information exchanges is to give providers access to more information. But the record is unlikely to be complete: not all the patient’s providers may choose to share their records, and those who do may withhold information if it has special protections (such as information about mental health and alcohol and drug abuse treatment), or if the patient asks them to. This may lead to mistaken assumptions on the part of providers using the record. There should be a clear understanding among users of a shared record as to what information can or should be withheld.
Electronic health records may bring new liability risks. But liability is not absolute: it is based on a failure to follow accepted norms or to adopt available improvements. If the EHR offers the promise of overall improvements in care, providers (and their patients) may be better off with it than without it, even if it introduces new risks.
For more information, please contact:
Other DWT Contacts:
Gerry Hinkley, San Francisco, (415) 276-6530, gerryhinkley@dwt.com
Thomas E. Jeffry, Los Angeles, (213) 633-6882, tomjeffry@dwt.com
Kent B. (Bernie) Thurber, Portland, (503) 778-5202, berniethurber@dwt.com
Rebecca L. Williams, Seattle, (206) 628-7769, beckywilliams@dwt.com
This Health Law Advisory is a publication
of the Health Law Group of Davis Wright Tremaine LLP. Our purpose
in publishing this Advisory is to inform our clients and friends
of developments in health care law. It is not intended, nor
should it be used, as a substitute for specific legal advice
as legal counsel may only be given in response to inquiries
regarding particular situations.
Copyright 2006, Davis Wright Tremaine
LLP.
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