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Electronic Medical Records: Medical Malpractice Shield or Magnet?

Several posts on this blog have been devoted to tort reform. More than any other subject, this topic generates more heat than light. Indeed, I describe these debates and commnets on this blog and elsewhere as duels, not discussions.  Many folks on various sides of this issue earnestly believe that they have the better argument. Other viewpoints are not purely held and are clearly contaminated by self-interest. I have written repeatedly that I believe that the current system is unfair and does not serve the public well. The public understands the issues and the controversies. In general, I don’t think most Americans believe that we have too few lawyers or lawsuits in this country.

It is astonishing that people can defend a medical liability system that

          Misses the vast majority of patients injured by medical negligence

          Ensnares many more innocent physicians than negligent ones.

Shouldn’t these two inarguable facts be sufficient to demand at least an examination of the current system? If a diagnostic test only detected a medical condition in 5% of cases, and caused harm in a sizable percentage of healthy individuals, would we defend it, or try to improve it?

When new medical development occurs, it has legal ramifications for physicians, patients and the plaintiff’s bar. Physicians are held to a certain standard of care – as we should be – which is evolving. It can be murky to determine when a new standard becomes established in a dynamic situation, but this is a critical legal issue. For example, a new treatment may be introduced, and even approved by the Food and Drug Administration (FDA) , against a specific disease. Does FDA approval signify a new medical standard?   Is common usage alone, without FDA approval, define the standard of care?  How many physicians need to be prescribing a medicine for the treatment to be considered standard? 10%? 20%? Could a physician successfully argue that lack of FDA approval of a treatment indicates it should not be regarded as the standard of care? If a conservative practitioner like me delays prescribing new medicines until there is a longer track record safety and efficacy, could I be charged with deviating from the community standard? I recall my  reluctance to prescribe a new irritable bowel syndrome medicine years ago, because I didn’t feel there was sufficient clinical experience for this new drug that was treating a benign, albeit troubling, disease. Sometime afterwards, the drug was pulled from the market after some patients died. I suggest that prescribing new treatments or diagnostic tests too soon might constitute a deviation from a judicious standard of medical care.

As Whistleblower readers know, our office instituted electronic medical records (EMR) this past September. It has been a spirited contest of man vs machine, but I think that we will ultimately prevail. The battle has been more prolonged than we anticipated. We knew there would be many challenges. We didn’t expect, however, that there would be so many unforeseen obstacles, which continue to try to derail us. When your smiling EMR vendor shows up in your office and shows you an awesome demo, think WWRD, or what would Reagan do. ‘Trust, but verify.’

EMR has been advocated as an advance that will diminish physicians’ legal vulnerability by providing much better documentation and communication with colleagues. While this may be true, the nascent technology has created gaps and fissures that are portals for lawsuits to sail through. The New England Journal of Medicine has published a review highlighting the medical malpractice risks of EMR in its November 18th issue. I have disseminated this article to my partners and staff and strongly urge readers to do the same. Here are some of the essay’s highlights, including some of my own observations.
  • EMR usage and reliance upon various clinical support capabilities that advise on clinical decision making and practice guidelines may change the existing standard of care. In other words, failure to rely upon these increasingly available clinical support resources could be considered to be a deviation.
  • EMR use may become the standard of care itself, making those who cling to paper charts legally vulnerable.
  • Physicians are especially vulnerable during the transition phase from paper to EMR when they are caught between the two systems. Our practice has experienced numerous snags and setbacks during this time period. I have had to repeatedly return to EMR notes to correct errors that were inadvertently or mysteriously inserted. Some are easy to identify, such as when a hysterectomy is listed on a male patient’s past medical history. Other goofs may be much tougher to spot in the lengthy and formulaic computer notes. When several individuals are responsible for entering data in a patient’s record, errors are invited.
  • Does the EMR software permit the physician to document his treatment plan, explaining his thinking and judgment involved in the medical recommendations? Or, is the ‘plan’ limited to a list of diagnoses? The latter might not provide much assistance to your defense counsel if you have to rely upon these thin record years after the visit.
  • Does your practice have a plan in place when the inevitable computer crash occurs?
  • How has your practice documented that all medical information in the paper record has been transferred to the EMR record?
  • The cut & paste technique that many physicians use in EMR risks omitting important new medical information and perpetuating inaccuracies.
  • Computer technology now gives access to various patient data bases at the time of the visit. Are physicians obligated to search through area hospitals’ and other organizations’ patient data bases to review all records contained there? Many patients have years of lab and imaging study results in various locales that we now have access to. The legal ramifications of this are obvious.
Of course, EMR will also protect us if we use the system well and are meticulous about our usage. If we document phone calls that direct patients to the emergency room or to a specialist, then this can stifle a lawsuit. Similarly, the EMR record can document that patients were notified of test results and were given instructions on when to follow up with us. But, I fear that, at least in the short term, the legal risks for us exceed legal protections. We need to be vigilant, not only to protect our patients’ health, but also to protect ourselves.

Alas, EMR will not be the Era of Medical Liability Reform.


  1. Yikes! Those of us who are clinging for dear life to paper charts would be liable for WHAT reason? I didn't realize being a Luddite was grounds for a lawsuit.

  2. I totally agree that the tort system is a very inefficient answer that, as you point out, misses most of the harm caused and doesn't seem to lead to reform.

    Why do we even have this system and why does it keep fielding cases?

    It seems simple to me: the system we have is the only recourse given that the medical profession as a whole refuses to take any constructive action (beyond attacking lawyers, of course: "Look over there! Look what those lawyers are doing!!"

    But how about this story from the NY Times: "Study finds no progress in safety at hospitals". ( Don't you think that's probably a greater cause of medical malpractice than lawyers responding to their client's complaints about medical treatment? (The Washington Post version, titled "Hospital infection deaths caused by ignorance and neglect, survey finds" (

    I think that you continue to exclaim and complain about a mote in the eyes of lawyers while the medical profession has a beam in its own eye: the adamant refusal to discipline and then ban problem doctors and the adamant refusal to adopt best practices. Until those are cured, I feel certain that medical malpractice will continue to occur and thus medical malpractice lawsuits will follow (inefficiently) in their wake.

    The onus of responsibility falls squarely on the medical profession.

  3. @A. Bailey: From the Washington Post article I cited above:

    "Why aren't hospitals leaping to adopt these best practices?.... More than half of the 2,075 respondents, most of whom were infection control nurses employed by hospitals, reported that they use a cumbersome paper-based system for tracking patients' conditions that makes it harder to spot infections in real time. Seven in 10 said they are not given enough time to train other hospital workers on proper procedures. Nearly a third said enforcing best practice guidelines was their greatest challenge, and one in five said administrators were not willing to spend the necessary money to prevent CRBSIs.

    "[Peter] Pronovost said part of the problem was that many hospital chief executives aren't even aware of their institution's bloodstream infection rates, let alone how easily they could bring them down. When hospital leaders decide to create a culture in which preventing infections is a priority, he added, nurses feel empowered to remind physicians to follow the checklist when inserting catheters, physicians are provided antiseptic soaps as part of their catheter kits and infection control personnel have the best tools to monitor patients."

    Emphasis added.

    Hope this helps.

  4. Another interesting story in this morning's LA Times: "'Error-free' hospitals scrutinized" ( From the story:

    "California public health officials are scrutinizing hospitals that claim to be error-free, questioning whether nearly 90 facilities have gone more than three years without any significant mistakes in care.

    "Eighty-seven hospitals — more than 20% of the 418 hospitals covered under a law that took effect in 2007 — have made no reports of medical errors, according to the California Department of Public Health.

    "The high percentage has raised concerns that errors have gone unreported. Some patient advocates say it is an indication that hospitals are unwilling to police themselves. State officials have given hospitals until Tuesday to verify their records as error-free or to report errors, as required by law.

    "Jamie Court, president of the Santa Monica-based advocacy group Consumer Watchdog, called it "almost inconceivable" that so many hospitals were error-free for the last three years.

    ""This is a see-no-evil, hear-no-evil problem. If you're not looking, you're not going to find any," Court said. "But if you are looking, you're more than likely to find some, regardless of the size of the hospital.""

    More at the link. I think this is a real-time example of how the problem is created and maintained by the medical profession. The lawsuit problem is a side-effect. To actually cure the problem, it must be tackled at the root cause. The fact that so many doctors have problems understanding this idea does not bode well for their diagnoses of medical problems: apparently they treat the symptom, not the disease.

  5. "It is astonishing that people can defend a medical liability system that "

    It remains astonishing that you believe there is a "medical liability system". There is not. You have been told this repeatedly, but choose to ignore it. Why, I don't know.

    There is a civil justice system, and it adjudicates claims brought to it. Your criticism that it doesn't catch more negligence is frankly a ludicrous one, because neither physicians nor their insurers WANT all incidents of negligence reported, much less to pay the damages resulting from them.

    Your complaint that it "ensnares" more "innocent" physicians than it should is also ludicrous, because any body that investigates complaints against physicians for negligence is almost certainly going to review more claims than it finds warranted.

    You know these things. Yet you continue to act as if they don't exist. Why? And the only "reform" you've supported has literally nothing to do with either of those complaints. Which causes them to ring hollow.

    As for the standard of care, that is up to physicians. If physicians want to promulgate standards of care, indeed even set up a body to do this, there is literally nothing stopping them. Zero. Zip. So criticizing the civil justice system for not doing something that is exclusively within the purview of medicine seems, to overuse a word, ludicrous as well.

  6. @anonymous: I conclude from your comment regarding the medical liability system (or whatever terminology you choose)is functioning well and needs no reform, or even reexamination. I disagree.

  7. Since you haven't defined "well", I have no idea what you're concluding. Until you set some baselines for what you mean by "well", it's impossible to discuss the issue from that perspective.

    We know you disagree. You have stated those two points of disagreement ad nauseum. What you haven't stated is how the reforms you've supported in the past address either of those, nor how any future reforms you're proposing address those. Without infringing on the US Constitution, of course.

  8. Leisure Guy's comments, directed at a solo office-based practitioner, are irrelevant, but most of his musings here are anyway. If he wanted some fair-minded input, he could google James Reason and review some of his well thought-out literature. But he'll probably just cuddle with his back issues of The Nation instead.

  9. I have found that quite seldom is there any direct response to arguments and statistics that I post here, so I am grateful to A. Bailey for responding, even though I don't believe he could have read what I posted in this discussion: no quotes from The Nation (I don't read it anyway), but rather quotes from newspapers recounting the problems from which the lawyer discussions are intended to distract us. I like factual input.

  10. It has advocated and a great deal of emphasis is being placed n the use of an electronic medical record to reduce errors and duplications, as well as increase patient safety.

    Owing to a better need to increase efficiency inside the medical offices, many medical practitioners are searching for software that will be able to take care of all of their client needs. Electronic Medical Records are in fact a vital case and should be treated as precious as a patient’s life may be ruined in no time.

  11. "Other viewpoints are not purely held and are clearly contaminated by self-interest".

    Yeah, yours are a prime example of that.

    "I conclude from your comment regarding the medical liability system (or whatever terminology you choose)is functioning well and needs no reform, or even reexamination. I disagree".

    What medical liability system are you dreaming up? You were told repeatedly, like a child who is scolded not to smear his dirty fingers all over the walls that no such system exists, only a civil liability system - you don't get a different system than everyone else. You are still adament to tell us about this fairy tale system.

    You want your own "special" courts aka foxes guarding the hen houses. Good luck getting past the 7th amendment (right to a civil jury trial).

    As far as making the system more efficient, I have a few suggestions...

    1) Streamline discovery by getting the same judge to monitor it throughout the lawsuit. This will remove a liable defendant's incentive to drag out litigation for years for no reason. Force both sides to come up with a "SCOPE OF DISCOVERY" and stick to it.

    This will allow meritorious claims to go through and kick bad ones out, although in my state you need an expert witness to sign off on a lawsuit before you can even file it, so all are at least potentially meritorious.

    2) Implement stringent expert witness standards as seen in numerous states already. I would base this on a plaintiff/ defendant past testimony ratio.. If you have an expert who only testifies for one side, dont even let the jury discredit him (which they would) save the time by not allowing him in

    What needs reform is DISCOVERY ( the long, overly burdensome process of acquiring evidence). Once reformed, you could get in and out of court quickly.

  12. Certainly copy and paste can be used in a bad way, but so can a ton of other things in a medical practice. I think you'll find this post by Dr. West interesting where he outlines how copy and paste can actually help him to be a better doctor:

    I fear that many of your concerns over EMR and its use stem more from poorly implemented EMR software than anything else.

  13. You should look into a web-based EMR
    system that offers a much more intuitive and user-friendly alternative to a traditional type EMR. While it will always be a challenge for those used to charting by hand, there are many ways to work around the costly installation and upkeep that traditional vendors require.

  14. So basically, most of you guys are telling that this so called "tort" does not entirely promote reform to monitor and put necessary laws to prevent malpractice.

  15. Nice post! I enjoyed reading your post. Anyway, The right electronic medical records software system can save a physician practice time and money, while also improving patient outcomes.That's the reason why many wants to have their own electronic medical records software system. Keep posting.


  16. This is such a great post.

  17. Great article Mike,I definitely agree with you and LeisureGuy, that the tort system is not the answer. I found your blog about EMR while searching online for physical therapy documentation software. I'm happy I did though cause you definitely addressed a important topic, thanks for the good read Mike.


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