Electronic Medical Record Risks

As a representative of The Doctors’ Company, the nations largest physician owned medical malpractice insurance Carrier, we have access to an abundance of information which may help physicians navigate the new risks and technologies used by so many practices and facilities.  Some of this may be of assistance to you as you continue to learn about the risks of medical records and the abundance of information available in them. 

The Doctors’ Company, represented by The Doctors’ Insurance Agency includes Data Breach, Information Security insurance up to $ 50,000 of expense and defense with each medical malpractice insurance policy sold.  Data breach insurance does not cost anything at the first level, $ 50,000 of defense.

The Cyber guard insurance program is included with your policy and can protect you against the first party liability that comes with the increased responsibility imposed by the recent Hitech act recently added to the Health Insurance Portability and Accountability Act.

Cyber Guard includes all necessary legal, public relations advertising and postage expenses incurred to notify patients of a breach.

Additionally, up to $ 50,000 is available to cover online and offline information or leaks, identity theft, and attacks on the server that holds the data, $ 50,000 is included for defense of a Red Flag Violation or any other investigation conducted by a government agency resulting from a privacy breach, including regulatory fines.

And, finally, there is $ 5,000 available for reasonable and necessary sums required  to replace the data that has been damaged or lost or stolen.

Recently, our Medical Director, David Troxel, M.D. wrote about the risks inherent with electronic medical records:

He brought up many important facts to consider as our physicians begin using electronic medical records more often; in fact, the use of EMR is beginning to become the norm (as encouraged by the Health Insurance Portability and Accountability Act.

The integration of medical records brings with it great potential to revolutionize the practice of medicine, allowing for independence and association, for innovation and replication, the electronic medical record can bring the best of technology to improve the record of all physicians practicing medicine today.  As is the case with all new technologies there are very real risks to the practice, both clinically and socially;  physicians are empowered and held more accountable at the same time.

The liability of physicians is increased because there is so much electronic information now available through the patient website or through the practice EMR, access to radiology reports, community medication histories, hospital charts, lab reports, physician records, .if a patient injury results from a failure to access

Twenty Five Percent of Office Practice now use E Prescriptions, which bring new liabilities to physicians as well. Unintended consequences along with the improvements that come with this technology.

The benefits of using E Prescription software is that you will have access to many patient records, which, when properly transmitted can provide life saving drug interaction information for patients prior to implementing a drug regimen.   There are other e prescription software platforms offered by the government to help practices use electronic medical record and e prescription programs.

Using e prescribe also makes renewing the medications more effective, more closely monitoring the health of the patient receiving the therapy.

E prescription programs can reduce costs by triggering the availability of using generic drugs rather than the manufactured drug therapies. However, these innovations also bring complications and hold physicians to even higher liability standards.

For example if a physician prescribing is alerted to a drug interaction conflict and the prescribing doctor is advised to contact the other physician about the dangers of the conflict, the two physicians must consult about which drug to continue and which to discontinue.

If this consultation does not take place then, there may be some negligence found to increase the risk of error. The ‘drug’ interaction alerts, although, logically these are risk reducers in every way….there can develop some ‘alert fatigue’ within physician offices;  if a doctor receives the alert from a carrier and does not act on it, the standard of care is raised with a greater likelihood of liability. 

There are a list of unintended consequences that can result from electronic medical records, from the alert fatigue just mentioned to the word processing phenomenon of rote filling rather than the thoughtful analysis that comes when one journals their thoughts, carefully noting patient progress rather than ‘copy and paste’ easily accomplished in the world of electronic documentation.

Finally, Dr. Troxel points out that many e prescription programs include clinical functional support along with the prescription recommendation.  This, again places a higher standard of care on to the physician.  The doctors need to be familiar with the source of the clinical decision surrounding the drug therapies recommended by the software managing the prescriptions.

Electronic medical records can provide physicians with so much information that they are unable to keep up with the higher standard of care, not keeping up with the indicated follow up therapies, medication regimen or follow up appointments.  Since all of the electronic records are time stamped, the physician’s notes are very vulnerable to ‘cross examination’ and self incrimination; there is  some good accountability resulting from all of this.  However in a profession which is defined by high,  impeccable standards, the physicians who work so hard to improve and implement improved technology, techniques and philosophies of care are, it seems in a more difficult situation than ever.  I recall a physician who was inquiring about employment practices liability, physicians billing, audit insurance, electronic data and physician practice management liability insurance asking me about all of this insurance. Where does it all end.

I would say, right there, the billing, the data, the business and the boss,

Once you’ve covered all of those areas, your practice is pretty well insulated from unintended consequences o legislation that is, ironically, designed to protect patient and assist physicians in the lo9ng run to practice better, more efficient medicine.  Then, make sure you are partnered with a strong patient safety company to teach you all of the information that they learn and discover along the way.

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