Physicians must carefully balance the benefits and risks of using electronic health records.


Published 8/1/2014
Thomas B. Fleeter, MD

EHRs and Medical Liability

New technology raises new concerns

As electronic health records (EHRs) become a fact of life in a modern medical practice, concerns increase about new risks for medical liability related to their use. Although payers, the federal government, and healthcare systems tout the value of EHRs, many physicians remain skeptical about the value and time savings that supposedly accompany EHRs.

EHRs promise improved quality, safety, cost reductions, and efficiencies of practice, but many physicians continue to be wary of implementation expenses and workflow changes. Adopting an EHR means changing styles and standards of practice, resulting in new strategies for documentation. E-discovery is now the norm in medical liability cases.

At first glance, it would seem that EHRs should result in some protection from liability claims. EHRs should lead to improved legibility, standardized forms of documentation, automatic notification of lab results, and improved transfer of information between referring physicians. Many insurers offered EHR discounts, believing that EHRs reduce liability exposure. However, an analysis published in The New England Journal of Medicine in 2010 was unable to determine whether EHR would ultimately increase or decrease malpractice liability.

New liabilities
In this digital age, EHRs also present new avenues for liability exposure. Storage and transmission of confidential data raise security issues, and unauthorized release of data may result in violations of the Health Insurance Portability and Accountability Act (See
“Could Your Practice Pass a HIPAA Audit?”) Juxtaposition errors (mistakenly selecting a patient or medication from a computerized list), illusion of communication (assuming medications were ordered, when, in fact, the medications were reviewed but not ordered) and the difficulty in reviewing the entirety of the medical record due to the number of “clicks” required to view all notes and test results can present risks unknown in the precomputer days.

EHRs can affect the volume of material available in a malpractice case. An outpatient arthroscopy procedure can produce hundreds of pages of records. Metadata—time stamps that show where the record was produced and who actually produced the data—are automatically created.

Relying on the system to identify medication conflicts can result in over-reliance on the computer to “do the job” when in fact the physician may need to use judgment, not medical evidence, for actual medication conflicts. Medical records produced after the patient was discharged represent the entirety of the record, but may not show what information was actually available to the physician at the time care was delivered.

Design issues
Improper use of EHRs from poor computer program design as well as users’ unfamiliarity with the system can result in a litany of problems. Following are just a few problems that have been noted:

  • lack of synchronization between computer systems
  • failure to capture physiologic data electronically
  • documentation after the fact that appears to be written contemporaneously with the treatment
  • inability to indicate an error when progress notes were written on the wrong patient

Users of EHR systems must be careful not to perpetuate mistakes in the record. Copying and pasting previous physical exams and histories may save time, but is a bad idea because this can result in overlooking significant changes in the patient’s medical status. A physician who unthinkingly copies and pastes information may repeat mistakes or oversights in the original exam several times in the course of treatment.

Because EHRs may include templates that can contain pages of irrelevant, repetitious, or unintelligible data that can serve to mask important information, physicians must take steps to develop their own templates and to review data carefully. Recent studies have highlighted one of the most debated unintended consequences of EHRs—the overabundance of warnings and reminders generated by clinical decision support tools. When physicians start experiencing alert fatigue, notifications begin to get ignored or overridden causing important warnings to slip through the cracks.

The existence of the electronic “footprint” makes it important for each individual to have a unique log-in credential. If both the physician and the physician’s medical assistant share the same credential, it may be difficult to identify which individual was accessing and making entries in the record after the fact.

In addition, using the “preview” mode to review notes may not trigger the time stamp footprint. In these cases, no record of the review exists, even though the provider reviewed the information and took action on it. This may be problematic if a medical liability lawsuit is filed later.

Patient safety
The business of providing EHRs is a multibillion dollar industry that has grown significantly due to government incentives to install EHR systems and requirements to meet meaningful use. Despite the possible risks in using EHRs and the “growing pains” experienced when installing systems, there is no mandatory requirement to report errors caused by the EHR. Unlike medical device makers, software companies are not required to report malfunctions, serious injuries, and deaths. No central database of errors exists and a 2011 report from the Institute of Medicine states that this situation creates “unacceptable risks to safety.”

Most data regarding patient safety and EHRs are provided through voluntary reports. When hospital systems adopt or shift to new systems, the safety of hundreds of patients may be at risk. For example, when one hospital rolled out a new EHR system, medications were ordered for the wrong patients. System glitches at another hospital resulted in the apparent disappearance of medications from patient files, endangering patient safety. Software glitches in a third system resulted in patients receiving excessive doses of heparin.

Input errors are common causes of mistakes in managing patient care. Although errors due to illegible handwriting, misspellings, and improper dosing were commonplace with paper records, the switch to EHRs has not eliminated these types of errors. Copy and paste functions may result in the insertion of incorrect exams, vital signs, or lab tests in a patient’s record. A wrong keystroke could enter data into the wrong patient’s chart.

An article in the Journal of the American Medical Association found that one computerized physician order entry (CPOE) system actually facilitated 22 types of medication order risks. These included mistaking pharmacy inventory for dosage guidelines, inflexible medication ordering tools, and screens that displayed an incoherent view of patient’s medications. CPOE systems also present the following problems:

  • Cumbersome medication charting and poorly designed displays may require physicians to review numerous screens to review a patient’s entire medication list.
  • Physicians may order new medications while failing to discontinue old medications due to difficulties in determining which medications are current.
  • System inflexibilities may interfere with providers’ ability to enter nonstandard medications.
  • Cumbersome signing procedures may confuse the ordering physician into thinking a medication was ordered when in fact the order was not properly electronically signed.

The wrong kind of help?
Clearly, contemporary physicians are challenged by significant time and workload demands. EHR use is time-consuming and requires clinicians to be responsible for processing huge amounts of information. EHRs impose new demands on each physician’s workday. One study showed that EHR increased documentation time by 17 percent.

For example, many users of EHRs feel overloaded by the number of error messages and override suggestions. In one study, physicians often ignored suggestions for disease management. Another study found that physicians distrusted computerized warnings or simply were so overloaded with warnings that they simply overlooked them.

In addition, drug allergies may be noted in the patient chart when in fact the “allergy” is a known side-effect rather than a true allergy. More than one court has found physicians liable for failing to meet the standard by ignoring warnings in the Physician’s Desk Reference or in a computerized record. The presence of these warnings and the physician’s subsequent override of the warning may lead to an error that could result in a lawsuit.

To reduce the risk of a medical liability incident, physicians should take the time to look at every alarm to avoid missing important details, and to read all of the information about chronic conditions, recent tests, and allergies before ordering treatment.

Not all bad
EHRs provide a broad range of functions that can help manage health information, including transmitting test results to treating physicians and consultants, facilitating medication ordering, and eliminating lost or duplicate orders. EHRs can provide automatic reminders to improve preventive care and disease management. They can also improve communication between providers.

Secure messaging systems may also help improve communication with patients, leading to increased patient satisfaction and a reduced propensity to sue.

One goal of a workable, dependable EHR would be to provide each patient with a personal health record that is portable and readable by any treating doctor. In summary, there are many pitfalls possible in their use, but if used properly, EHRs can be lifesavers.

Thomas B. Fleeter, MD, chairs the AAOS Medical Liability Committee. He can be reached at

Editor’s note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to or contact this issue’s contributors directly.


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