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Legal Daily News Feature

EHRs and Legal Liability By Rebecca E. Neely In today’s digital age, the use of electronic health records (EHR) only continues to increase, as does the legal questions and issues surrounding their use.

08/31/11 Adam Greene, partner with Davis Wright Tremaine and previously a senior health IT and privacy specialist in the Office for Civil Rights, explained, per the August 29th searchhealthit.techtarget.com article, ‘’Legal implications of EHR use still difficult to define’’, that the EHR by itself is difficult to define and regulate, in addition to the host of liability issues they present. However, he views the adoption of EHR as a starting point, rather than a ‘’destination’’, and this leaves lots of room for improvement and innovation in the process along the way. So what types of liability exist in relation to EHRs? According to the November 23, 2010 searchhealthit.techtarget.com article, ‘’Liability and EHRs: How electronic information changes legal landscape’’, EHRs are a double edged sword with regard to malpractice claims and medical liability litigation, meaning while they may prevent such issues, they might create them as well. According to the August 29th searchhealthit.techtarget.com article, a survey conducted by the Center for Studying Health System Change in 2009 of physicians revealed that most doctors feel that not only will they be part of a lawsuit in the next decade, they must rely more and more on technology, versus their own judgment, to assist them in making clinical diagnoses to avoid the threat of malpractice.

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Perhaps herein lies the problem. Relying too heavily on any type of technology, it seems, can only lead to problems, legal and otherwise. Technology cannot replace the ability to think, or negate the value of human interaction, and intuition, and nowhere is this seemingly more evident than in the medical profession. And that seems to be the opinion of research as well. According to the November 23rd searchhealthit.techtarget. com article, after studying the legal issues associated with four major EHR functions, which include the documentation of clinical findings, the recording of test and imaging results, computerized physician-order entry, and clinical decision support, researchers reported in the New England Journal of Medicine, ‘’Medical Malpractice Liability in the Age of Electronic Health Records’’, that while EHRs have great potential for preventing medical errors and malpractice claims, ‘’there is currently no evidence that the use of EHRs reduces diagnostic errors.’’ Because EHRs are electronic, they retain a trail of recorded information. This trail is what makes them susceptible to legal consequences; per the November 23rd searchhealthit. techtarget.com article, if gaps of time are missing from this trail, both the ‘’validity of the record and standard of care might be hard to defend in court’’.

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EHRs and Legal Liability