You can help set expectations on EHR liability

A tourist from Arizona suddenly collapses while visiting a boardwalk in New Jersey. The young  woman's friends rush her to a local hospital, but she cannot communicate with the medical personnel. Her companions provide the woman's identification, but they cannot offer any relevant medical history.

Fortunately, under a national system for shared electronic health records (EHRs) now being developed, the physician uses an online portal that provides access to her new patient's medical file.

As EHRs move toward a system of national access, questions inevitably arise as to the medical liability implications of having access to all records, all the time.

The benefits of national EHR access are too numerous to keep privacy and security concerns from being resolved. As is often the case, however, the law needs to catch up to the technology. More specifically, courts will have to weigh how to treat healthcare providers who have access to data unlike anything previously available.

Unfortunately, medical records sometimes contain lab values and x-rays that were not acted on, even by the doctors who ordered them. Will our New Jersey physician be faulted for not following up on those items herself? Even with perfectly maintained files, what kind of duty will be imposed on a clinician when a mass of raw information from primary care practitioners, specialists, clinics, and other sources is imbedded many screens deep for a patient who is a complete stranger?

Ultimately, the law-and the medical profession itself-will have to answer these and similar questions so that a national EHR system can achieve its full potential to save lives while protecting providers from "gotcha" litigation. Fortunately, ways exist for both-plus technology itself-to move us forward.

In the law, the fundamental principle of duty requires all persons to use ordinary care to prevent others from being injured as a result of their conduct. Any departure from this principle requires balancing certain considerations. Among those factors are the burdens on a defendant and the consequences to the community of imposing a duty.

When a national EHR system emerges, you will need to be confident in your decisions as you navigate through data collected over vast expanses of time and geography. And communities will need to decide whether a more realistic standard exists than requiring physicians to have absolute command of even the most minute entries in these new super-records.

You and your fellow physicians must help the courts reach those destinations through ongoing dialogue and other activities. It will be easy to blame attorneys or the courts if a national system creates a new level of litigation risk, but medical professional liability trials are not lost on the testimony of attorneys. That's not how it works: Jurors can find against a physician for professional negligence only if another physician says they should.

With a national EHR system, you can seize the opportunity to help establish the appropriate standard of care, one that opens up a new era of patient care while also setting reasonable parameters on what a healthcare provider should be responsible for when an errant entry lurks in the medical file.

Welcome medical record technology as warmly as computerized imaging and pulse oximetry. In fact, a primary benefit of EHRs is not merely the display of information, but also the building of systems of alerts and prompts so that orphaned lab reports and x-rays cannot go unaddressed by the appropriate care providers.

Ultimately, avoiding litigation stemming from  shared medical records will take contributions from the law, medicine, and technology itself.

With all three forces going in the right direction, chances will be excellent for our traveler’s safe return home.

The author is general counsel for the Cooperative of American Physicians Inc. Send your primary care-related legal questions to medec@advanstar.com.