While the new legal issues surrounding the use of electronic health records remain unclear, that shouldn't stop medical providers from going ahead with their use, according to a trio of Washington-based legal experts who addressed the Jan.12 meeting of the Electronic Health Records Workgroup of the American Health Information Community HHS advisory panel.
"There are no insurmountable legal barriers to doing any of this," said Bruce Wolff, a partner with Manatt, Phelps & Phillips, who added that most concerns are a result of perception problems and a "natural skittishness" to change.
Legal issues aside, Wolff said the biggest issue involves what to do with old paper-based records as even those that get scanned into an electronic system may not be easily accessible. He added that perhaps the best way to deal with related issues such as ownership, security or financial concerns is to have a third-party "custodian" take care of the electronic records, which would remove the responsibility for these issues from the patient or provider.
Both Wolff and Michael Kidney, a partner at Hogan & Hartson, said data-mining will uncover medical errors that normally would have remained hidden. While this may lead to malpractice lawsuits, Wolff said, it may also provide education opportunities that prevent future mishaps.
Kidney said the good news was that there should be decreased liability for everyone because of the decreased likelihood of adverse events.
He also said that there is not much case law involving EHRs and that lawsuits based on a provider's alleged negligence in checking a patient's medical history often hinge on the accessibility of that patient's records. If EHRs make a patient's records more easily accessible, "the burden on providers will potentially increase exponentially," Kidney said.
Mark Tatelbaum, general counsel for the George Washington University Medical Faculty Associates, noted that financial issues are more of an obstacle to EHR use than legal concerns.