Access to Care Report/This Week (#2): Electronic Medical Records Can Impair Legal Accountability and Access

July 18, 2013

health-care-lawElectronic medical records (EMRs) are rapidly replacing paper-based records. According to the Department of Health and Human Services (HHS), “more than half of doctors’ offices and 80% of hospitals that provide Medicare or Medicaid” will be using such records by the end of 2013. So the shift away from paper is almost done.

Based on research to date, EMRs can significantly reduce treatment errors due to problems with legibility and difficulty with reviewing previous handwritten notes. It has been estimated that EMRs can cut errors “by half.” This is the bright side.

But EMRs also have a dark side that can affect legal accountability for care provided.

The core problem is that, basically, an EMR system is a large and complex computer program, with all of the advantages and disadvantages of such programs. The EMR computer programs are sold and maintained by private companies.

Based on past experience, such programs may be afflicted with human interface issues and built-in biases, and can experience “bugs”, “glitches”, and “file integrity” problems.

Errors may creep in during the input procedures for patient information, and files can vanish or be corrupted. Operating problems can come and go without being well-understood or documented.  These seem to be inevitable features of large software systems.

Typically, program problems are resolved by teams of programmers that tend to operate largely independently of outside supervision, due to the “tech-conversation” gap. At the same time, these programmers tend to be constantly “upgrading” and “improving” such systems, and there is often little ability to go back and re-create the program exactly as it existed at a previous date.

Against this backdrop, attorneys may face a variety of new problems when dealing with legal accountability on behalf of clients. Major computer outages and other system malfunctions may have a serious impact on care.

There are several aspects of this situation that may be kept in mind:

  1. Any legal review based on EMRs may require lots of preliminary research in order to understand what is in or not in a record, and how the record was prepared.
  2.  An EMR for a patient may evolve over time, sometimes in unexpected ways. It may be impossible to determine why a change has happened or to work backwards to trace changes.
  3. Errors on medical records may be difficult to fix, depending on the types of errors and the situation.

Access to care is being affected by EMRs in a variety of ways. Both diagnoses and records for treatment must be modified to fit the software requirements. Clients may develop a distrust of EMR systems due to personal, family, or acquaintance experiences, or problems described in the media.

Complete reviews of past care may be difficult or impossible to perform in some cases. And lack of accountability for such systems may sometimes make remedies more difficult, also impacting client attitudes.

Access to medical care is dependent on the nature of patient-provider communications. Any problems with this critical interface can affect behavior on both sides of this relationship, and thus can impair (or enhance) access.

This is #2 in a series of weekly Access to Care Reports.