An attorney friend who defends physicians in medical malpractice cases has discussed with me the challenge of reconstructing a case for trial on the basis of the EHR print-outs she uses to prepare for a case. This theme was echoed in a recent article about how EHRs are shaping medical malpractice law (see: 3 Ways Electronic Health Records Are Shaping Med Mal Cases). Below is an excerpt from it:
Medical malpractice attorneys may be grateful that the rise of electronic health records means they no longer have to decipher physicians’ notoriously illegible handwriting, but the records come with their own array of frustrations....[Two experts in the field] said EHRs have become “front and center” in malpractice cases over the last two years, consuming roles both in discovery and at trial....The biggest problem with...[EHR] records....is that what lawyers see and what medical professionals see differ drastically. Attorneys don’t get screenshots of the records entered but rather hundreds or thousands of pages of printouts that aren’t logically laid out.....For example, instead of being able to view all entries by date, the printout is more likely to show categories, like medication orders, grouped together. This means on the stand or during a deposition, doctors, nurses and other professionals are scrambling to understand the record before them and “putting puzzle pieces back together,” ....[A] [p]laintiffs attorney...said the printed records are “easily” 10 times the length of handwritten records, so pulling out the important data is difficult.
I have blogged a number of times about some of the problems associated with EHRs from the physician and nurse perspective (see: Physician & Nurse Involvement in EHR Design; Patient Safety and EHR Gag Clauses; Alarm and EHR Alert Fatigue: A Growing Patient Safety Concern; Copy-and-Paste Errors with EHRs; Some Possible Solutions to the Problem; Reducing EHR "Wrong Orders" by Limiting the Number of "Open Charts"). However, the perspective about EHRs from malpractice attorneys is also very enlightening. What you will learn in the article quoted above is that the EHR printouts are often voluminous and difficult to place on a clinical timeline so that a judge and jury may have difficulty understanding the basis for medical decisions made for a plaintiff. At the same time, however, the general population also holds the belief that EHRs have improved the standard of care in healthcare. Below is a quote from anther article about this topic (see: Medical malpractice: How EHRs are changing the game):
...EHRs are having an impact in the courtroom beyond bearing witness or party to error. Evidently, electronic medical records are viewed differently from paper records, which has far reaching consequences in a lawsuit."Unlike paper records, where incomplete or illegible records are expected, with EHRs they're expected to be complete and immediately accessible and portable," explained [an] attorney....Perhaps more significantly, EHRs are changing the nature of malpractice litigation. For instance, EHRs hold much more data than paper records. While that seems better, it creates more complexity and increases liability because it's easier to miss a small detail buried in the data; more access to clinical information could create new legal duties to act, such as to search patient information generated by others and available via a health information exchange....