Advances in technology have enabled physicians to shift from paper to electronic health records (EHR). Though this move is expected to make their work easier, they still face numerous challenges especially concerning understanding the ethical and legal implications of EHRs. These systems pose particular ethical and legal issues physicians that should not go unnoticed.
The Legal Issue
The biggest legal risk posed by EHR is the issue of medical malpractice claims (Brenner, 2010). While EHR present key opportunities for lasting benefits, they can be a pain in the physician’s work life. Physicians implementing EHR are at a higher risk for medical malpractice at the time of adoption. This risk of error is likely to increase during the time between the transition from a familiar system to a new one or during the implementation schism. Although many EHR systems lead to improved patient safety, they are associated with malpractice claims in the healthcare sector.
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Apart from increasing chances of lawsuits, EHR also influences the course of these litigations by either increasing the availability of documentation and data, which may either prove or defend a malpractice claim. Often, electronic documentation is organized, legible, and more detailed. Within the federal law, EHR metadata consists of electronic medical records like the input of orders, clinical activity, and time stamps (Shah et al. 2016). The metadata has been previously used in civil trials. However, this varies according to state laws since most states have their laws that govern their own malpractice litigations.
EHR include detailed patient information unlike what is written in the traditional paper records. This detailed information may either hurt or help a physician’s case against malpractice litigation. For example, the Federal Trade Commission Report details a case in which a physician left a patient quadriplegic after a surgery. At first, the suit targeted the surgeon’s competence. However, after reviewing the EHR metadata, a date stamp signaled suspicion over the anesthesiologist was present during the entire period of the surgery. This case reveals that the availability of such electronic information in a medical trial can boost the chances of prosecutors finding some proof of wrongdoing among medical providers (Shah et al. 2016).
Egregious medical errors do not only trigger malpractice claims; even the most basic human behavior can is enough to cause such cases. EHRs offer physicians with the clinical pop-up alerts, decision support, and reminders for follow-up (Shah et al. 2016). All these resources are meant to enhance care delivery. However, while EHRs influence a physician’s clinical decision-making, all decisions about patient care ultimately relies on the physician (Brenner, 2010).
Human beings tend to fall to the recommendations given in the literature. However, most EHR contracts indicate that there are numerous limitations about the liability of the EHR vendor. In case of errors associated with the manner in which the clinical content is presented to the physician, it becomes challenging for the hospital or patient to hold the vendor liable. In turn, this increases the risk of malpractice for the physician (Shah et al. 2016).
Moreover, EHRs present the medical industry and the courts with previously unaddressed legal issues such as what constitutes a legal medical record (Shah et al. 2016). In the context of paper medical records, a medical record refers to a folder containing stacked papers with patient information, which physicians use as part of their basis for clinical decisions. However, in the context of electronic medical records, physicians focus on particular screenshots in a specified order. This has sparked a delicate controversy over what should be produced whenever a plaintiff requests for a copy of the patient’s healthcare records. The function of the paper medical record in EHR context produces a report that rarely resembles what physicians were looking at when they made clinical decisions at the time of treatment.
Just as any other technologies, EHRs are constantly upgraded, and healthcare providers do not retain a copy of the old environment because doing this would be expensive (Brenner, 2010). As such, even if hospitals had previously produced screenshots, given that there was a system upgrade between the time of the treatment and the time the screenshots were captured, the screenshots may not resemble what the physicians relied on when making the clinical decisions (Shah et al. 2016). Though there is currently no clear and concise remedy to this issue, for sure, the industry must keep an eye on this matter especially as the EHRs continue to become more sophisticated and as they continue to be commonly embraced in the healthcare sector.
Ethical issues
Physicians implement EHRs because of their numerous benefits. EHR refers to a patient’s medical information including the health history, diagnoses, physical examination, and treatment, in digital form (Shah et al. 2016). Hospitals and physicians use EHR to increase the quality of care, access to healthcare and reduce related medical costs. Despite these benefits, ethical issues related the use of EHR still confront healthcare personnel.
The failure to guarantee patient privacy is one of the many medical malpractices plaguing the industry (Jackson, 2016). Security breaches may occur when physicians leak to the public confidential patient information without the patient’s authorization or consent. Two recent incidences at the Howard University Hospital evidence this. This case illustrates how inadequate data security can affect a large number of people. In 2014, a medical technician working at the Hospital was accused of violating the Health Insurance Portability and Accountability Act (HIPAA). The federal prosecutors found that for a period exceeding one year, Laurie Napper used her job position to access patient’s addresses, names and Medicaid numbers for selling the information (Jackson, 2016).
Patient privacy is defined as the right to be protected from external disturbance or intrusion to personal space and information (Jackson, 2016). Therefore, individuals have the authority to keep information about themselves from being revealed to others. Physicians should only release a patient’s information to the public only when the patient gives permission or consent to do so, or when the law permits so. However, there are cases when a patient cannot give consent due to age or mental incapacity (Shah et al. 2016). In such cases, the legal guardian or legal representative of the patient should make decisions regarding information sharing. Information provided by a patient because of the patient’s clinical history, diagnoses, physical examination, and treatment is considered confidential and hence must be safeguarded. However, this category does not include information that the patient’s identity cannot be ascertained like the number of patients with breast cancer in a given hospital.
Integrity is a major ethical concern in the industry (Shah et al. 2016). It ensures that the accuracy of a patient’s information has not been affected. One of the primary reasons for implementing EHR is to improve patient safety by reducing health disparities, healthcare errors and improving public health. Nevertheless, there have been increasing concerns regarding the reliability and accuracy of information keyed in electronic records. We have seen cases involving inaccurate representation of the patient’s current health condition and treatment due to the improper utility of applications like “cut and paste” (Brenner, 2010). Such a practice is unacceptable because it increases liability for physicians and risks for patients. Another source of medical malpractice touching on data integrity is the disposition of valuable information into the trash and the top down menu application. These menus restrict the options available to physicians who in turn, hurriedly select the wrong choice leading to major errors. To date, vendors and clinicians are still working to address software issues to ensure that EHRs are not only accurate but also user-friendly.
Based on the relative novelty of EHRs, there is a need for the relevant stakeholders to devote more strategy to ensure healthcare personnel are properly equipped with information about legal risks and compliance. The first step should be in the EHR training process. Usually, this process is not always easy for most physicians. Given the physicians’ mode of operation, healthcare institutions should include certain initiatives in their EHR education content to ensure that personnel does not risk lawsuits out of ignorance (Jackson, 2016).
Physicians are normally trained to practice medicine in caring for their patients autonomously (Shah et al. 2016). Sadly, some physicians do not like to admit that they do not know some things. Such physicians may insist on using a private room when teaching them how to use a new clinical software application. Personalized and one-on-one training may be more effective because some physicians may feel less intimidated accepting uncertainties about using EHRs (Shah et al. 2016). In one-on-one settings, physicians may be more comfortable to discuss the impacts of software in their daily job including real-life illustrations of how ethical and legal concepts affect their daily routine.
To this end, hospital leaders should promote cooperation between physicians and the hospital’s Information Technology (IT) department. It is possible for the IT department to isolate itself completely from the EHR end users and this will make the hospital to lose touch with the “customer focus.” In this content, physicians are not the EHR end users but should be treated by emphasizing user input, convenience, comprehensive training, and reliable support. By providing these services to physicians, they will be more accepting to change and likely to adopt the new technology. Overall, hospital leaders must consistently evaluate and emphasize IT-physician relations to ensure cooperation. In turn, it will help the hospital avoid the numerous ethical and legal issues discussed in this paper.
References
Brenner, I. R. (2010). How to survive a medical malpractice lawsuit: The physician's roadmap for success . West Sussex, UK: Wiley-Blackwell.
Jackson, E. (2016). Medical law . London: Oxford Univ Press.
Shah, V. V., Kapp, M. B., & Wolverton, S. E. (2016). Medical Malpractice in Dermatology—Part I: Reducing the Risks of a Lawsuit. American Journal of Clinical Dermatology, 17, 6, 593-600.
