Wednesday, December 23, 2009

Trendspotter: Health information exchange raises new liability issues

By Ken Terry

When physicians are asked how an EHR might affect their malpractice risk, they usually think about their own documentation and orders. More comprehensive records, better access to those records, and automatic alerts might help them avoid an error that could result in a suit, they say. System crashes, diversion of their attention from the patient, and “charting by exception” could increase the possibilities for liability.

But what you do with your own EHR is not the only source of potential difficulties. As EHRs become increasingly interlinked with outside information systems, including those of other practices, hospitals, labs, pharmacies, and health information exchanges, the greater availability of data from these other sources could also raise malpractice risks, say some experts.
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In a recent Dr. Kevin blog post, attorney Robert J. Mintz points out that, as access to data on patient treatment outside your practice grows, you might also be held accountable for a higher standard of care. “Even as quality increases, the legal standard of care will keep rising too, so that rather than fewer mistakes and fewer lawsuits, there are more of each since the information you ‘should have known’ is now right at your fingertips,” Mintz writes.

Mintz cites a case involving a pharmacist who was sued after a patient to whom he dispensed a painkilling drug caused a fatal car accident. Because the pharmacist had access to records showing that this patient had gotten prescriptions for a large number of similar drugs before, the plaintiff alleged that he should have known the patient was abusing these medications. Mintz believes that similar suits could be brought against physicians who have access to the records of other physicians, as well as to community medication histories.

Other observers are concerned about the unintended effects of the information revolution on physician liability. Gerald “Jud” DeLoss, a healthcare and malpractice defense attorney in Fairmont, Minn., notes that when one physician’s EHR is interlinked with those of other doctors, “faulty information that may have been inputted into the system by a physician or staff member outside their facility could result in some type of incorrect treatment or an allergic reaction that could injure the patient.”

Steve Waldren, a family physician who is director of the AAFP’s Center for Health Information Technology, is concerned that if a physician has access to lab results in a colleague’s EHR and doesn’t integrate those results into his own record, he might be held liable.

And Washington, D.C., internist Peter Basch, a leading health IT expert, says that if you even open a colleague’s e-mail that contains information about a patient and don’t file it in your EHR, you could be held accountable because the audit trail would show that you had opened the e-mail.

Electronic prescribing is another can of liability worms. First, as mentioned earlier, physicians who prescribe online to pharmacies, either through an EHR or a standalone e-prescribing system, have access to Surescripts’ community medication history, based on claims data from pharmacy benefit managers and health plans. In some areas, prescribers may also be able to access a point-of-sale database that shows all of the medications, both prescription and OTC, that a patient has purchased in participating pharmacies.

What this means is that the e-prescribing physician either knows or should know what other medications a patient is taking when he prescribes a drug that might have an adverse interaction with one of those other pills. If everybody looked up this information, it would be a great leap forward for patient safety. But Surescripts says that in 2008, only 16 million prescription histories were routed to physicians who ordered 68 million prescriptions online. So doctors were checking their prescriptions against community records less than a quarter of the time.

The other liability risk associated with e-prescribing comes from the new ability to find out whether a patient has filled his prescription. (Surescripts includes the fill status as part of the medication history.) If a physician does not check on whether a patient has filled his prescription, is he liable if the patient doesn’t get the medication and has an adverse event as a result? If the doctor does know that the patient isn’t taking or refilling his meds, should he follow up immediately or wait until the next visit, and what responsibility does that entail?

The list of possibilities is endless. But, perhaps because legal experience in this area is sketchy, relatively little attention has been paid to the liability implications of health information exchange. That is likely to change, however, as more physicians acquire EHRs and as HIEs emerge across the country.

Ken Terry is a New Jersey-based freelance writer and the author of the book "Rx for Health Care Reform." In his weekly Trendspotter column, Ken is looking out for trends and changes that may affect your practice.

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