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Electronic Health Records Pose Potential Liability Risks

Steven E. North, Esq.

E-Health Records and E-Prescriptions Pose Potential Problems for MDs, Patients

Sliding walls stacked with hand-written patient records are giving way to Electronic Health Records (EHR), and as of March 27, 2016, it is mandatory that prescriptions issued in New York State for controlled and non-controlled substances, with some exceptions, are filed electronically. As machines are not human and humans are not machines, potential liability risks are beginning to be recognized, and it is important for physicians to become familiar with them.

Physicians, for example, have relatively easy access to patient information beyond the data collected by the practice: hospital charts, lab results, consultants' reports, and much more. If patient injury results from a failure to access or make use of available patient information, the physician may be held liable for medical malpractice.

With the electronic availability of community medication histories, Dr. A. may receive an alert advising him that a medication she has just prescribed could interact with another drug that Dr. X has already prescribed. It is incumbent on Dr. A's staff to contact the patient to identify Dr. X, and then decide with Dr. X which drug will be discontinued or changed. If failure to take action results in patient injury from a drug interaction, Dr. A may be held liable for medical malpractice.

Drug-drug interaction lists generate frequent, annoying, and disruptive alerts, and doctors may develop "alert fatigue" and ignore, override, or disable them. If it can be shown that following an alert would have prevented an adverse patient event, the physician may be found liable for failing to follow it.

Other potential liabilities lurking in the EHR world: Copying and pasting a prior note or the history and physical (H&P) into a new note may work for a patient's history, but not for the physical exam, where the narrative documentation of daily events and the patient's progress may be lost. And, as helpful as EHR templates and drop-down menus are, an entry error (e.g., selecting the wrong medication), may be perpetuated elsewhere in the EHR , where it may be overlooked, resulting in a new potential for error that can lead to liability.

With patient's booked every 10 minutes in some practices, the kind of human interaction that enables a physician to ask leading questions and leads patients to provide valuable diagnostic information is compromised. Add to that , a doctor who now, rather than facing a patient with his notepad, may have his back to a patient as he does data entry, and there is a greater chance for the kind of technology-triggered human error of the sort that may lead to patient injury.

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Steven E. North

Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees

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Laurence M. Deutsch

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