Perspectives: Electronic records: A double-edged sword for health care professionals

In today’s world, where constantly advancing technology has aided the pursuit of more thorough and efficient health care, electronic records have emerged as both a blessing and a curse for medical professionals. While these technologies can potentially transform patient care, they also generate potential liabilities.

Digital documentation platforms offer health care providers numerous benefits, such as improved patient care, instant and secure access to records, and streamlined workflows. Electronic medical records replace paper charts, while electronic health records are more comprehensive, containing documentation on patients from all doctors and medical service providers, allowing providers to access health data more holistically and put the full scope of a patient’s health picture in view. Unfortunately, these advantages are often accompanied by significant risks to providers and possibly their patients, such as documentation errors, dual or competing documentation policies, and vulnerability to cyber breaches or other data security incidents.

Risks to providers

While EMRs and EHRs provide obvious benefits, they also introduce several risks and challenges. Transitioning records from paper to digital format enhances accessibility and data organization, but some providers maintain digital and paper charts. A dual-chart system can lead to conflicting data, raising critical questions about the most accurate and up-to-date records. Some providers handwrite notes for another to input into the EMR, potentially causing erroneous entries.

Patient portals that enable consumer-to-provider communication offer meaningful patient engagement in health care delivery, potentially multiplying the number and frequency of patient encounters. However, failing to respond promptly to an electronic chart message a patient sends could be construed as negligent or further support proof of negligence in some jurisdictions. Meeting expectations that providers will be constantly accessible to patients can lead to provider burnout.

Electronic communications, including emails, texts and secure messaging platforms such as patient portals, facilitate quick and efficient information exchange between health care providers and patients. Texts related to patient care are likely to be a part of a medical record, provided a secure texting platform is used and conforms to security rules under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act’s 2021 amendment, and the Centers for Medicare & Medicaid Services’ Conditions of Participation. However, some platforms do not save chats to a patient’s medical record; instead, they delete them after a certain period.

Other pitfalls while using EMRs include copying and pasting patient information and data instead of taking updated histories and conducting physical examinations or using a software program’s ability to automatically transfer data for a patient from previous entries to new entries. These automatic measures risk perpetuating inaccuracies and missing critical new information, which could negatively affect patient outcomes.

The widespread use of health information exchanges, which allow for the sharing of patient data across different health care providers, may increase physicians’ duty to search and use the extensive data generated. While this can improve care coordination, it can also lead to information overload, where physicians might struggle to identify critical clinical information amid the vast amount of data available.

Clinical decisions documented extensively in EMRs create more discoverable evidence, including metadata. Metadata, or data about other data, provides a permanent electronic footprint that can track user activity. Under federal law, metadata is generally discoverable in civil trials, meaning a defendant physician must surrender metadata to the plaintiff, as exemplified in Williams v. Sprint/United Mgmt. Co. The discoverability of metadata varies under state law, but if records were revised at a time inconsistent with the treatment provided, metadata could raise the possibility of fraud in reporting even if there is no actual wrongdoing.

Software errors in electronic charting products can also be significant sources of headaches and possible liability for providers. Assessing liability for software errors leading to inaccuracies in EMRs is a complex issue. Determining whether liability lies with health care providers or software vendors can take time and effort, increasing costs associated with litigation and defense. Many software vendors ask through contract for the providers to indemnify them in the event of a “glitch” or other software program issue or from other problems presented by the software.

Finally, cyber breaches and data security issues pose significant risks, as unauthorized access to digital records can compromise patient privacy and lead to identity theft and other malicious activities.

Best practices

Like a freight train speeding down the line, clinical integration of digital tools, including electronic record-keeping and other practice-focused technologies, will likely become the standard of care soon. Failure to adopt and effectively use available technologies will be viewed as a deviation from the standard of care.

Physicians already have an ethical obligation to manage medical records appropriately.

Some best practices for using electronic health or medical records that can aid in the limitation of errors and liability include:

• Ensure the preservation of documentation integrity by being aware of and following relevant regulations codifying integrity features (e.g., providers who accept Medicare or Medicaid payments are subject to regulatory guidelines).
• Implement strong security measures to protect sensitive information and ensure compliance with data and health care privacy laws.
• Most software programs offer training to their users. Take advantage of the training and implement a policy whereby new staff must also review the training as part of their onboarding.
• Practice real-time or contemporaneous documentation of patient interactions.
• Do not use a copy/paste approach to documentation or allow the software to carry over information irrelevant to a new patient encounter.
• Avoid dual-chart policies wherever practical, except to the extent that these practices are useful as an audit tool.
• Avoid signing any entry or allowing staff to sign on your behalf without personal, careful review of the entry.
• Communicate electronically only with patients who have established care in person and maintain an ongoing in-person relationship.
• Establish a policy surrounding electronic communications (texts, patient portals, emails) that addresses response time and data storage.
• Use electronic communications, such as reminders, to manage chronic conditions such as hypertension and diabetes between in-person visits.
• Limit access to alter or edit records to pertinent staff.
• Implement a policy on how to address errors in an electronic medical record.
• Perform routine audits at least quarterly.

The above list is limited but offers a threshold for providers to consider.

In conclusion, digital charting is a double-edged sword for providers and their patients. Although using EMRs and EHRs offers transformative benefits for patient care and will likely ultimately be considered a new standard of care, they introduce significant risks that must be managed. Effective management and adherence to best practices are essential for maximizing the benefits and minimizing harm to patients and providers.

Kristen Swift is a partner in the Delaware office of Kaufman Dolowich LLP. She can be reached at Kristen.Swift@kaufmandolowich.com. Andrew Patellis is a law clerk with Kaufman Dolowich LLP. 

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