By: Hannah Newman,

As an industry, healthcare is quickly changing. When considering the latest technology in the realm of healthcare, many might point to the advances in surgical techniques or the creation of artificial organs. In reality, some of the technological transformations that affect the greater public go much more unnoticed. Electronic health information systems have created a drastic revolution in the way health records are collected, maintained, and disseminated.[1] An electronic health record (EHR) is a “collection of electronic health information about individual patients and populations.” [2] These systems integrate health care information that is currently collected and maintained in multiple different mediums such as paper, electronic record, and film.[3] The purpose of this integration of records is to improve quality of care.

The U.S. health care system has always been fragmented, consisting of multiple providers and separate systems of record keeping.[4] As health care operation costs have skyrocketed and payment methods have shifted, the U.S. health system has responded with organizational consolidation and managed care.[5] In order to facilitate this consolidation, increase efficiency in delivery of care, and decrease costs, health systems have turned to the broad adoption of electronic medical record (EMR) systems.[6]

The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 created a shift in the use of health records by providing financial incentives to promote “meaningful use” of electronic health records by medical providers.[7] According to the Centers for Disease Control and Prevention, the percentage of physicians who adopted the basic electronic medical records increased from 17-34 percent from 2008 to 2011.[8]

Health information systems operate to deliver a seamless continuity of care to patients. These electronic systems help integrate primary care, specialists, hospitals, laboratories, pharmacies, and physical therapy.[9] These systems “facilitate electronic access to clinical information such as demographic characteristics, patient encounters, and laboratory and imaging results, with some systems permitting clinicians’ notes.” [10] While sophisticated systems show promise to improve patient safety and coordination of care, initial stages of implementation can produce the opposite results.[11]

During the period known as the “implementation chasm,” where providers move from one familiar system to a new one, they should be aware of three main areas of medical malpractice liability.[12]

Liability in medical treatment: Greater access to a patient’s medical histories and treatments comes with greater risk of liability.[13] Providers “are responsible for medical information they can access—and there is increased access to e-health data from outside the practice that can be accessed” from the patient’s EHR.[14] Failure to fully review a patient’s medication list, lab results, or radiology reports can greatly alter a course of treatment and can cause serious injury to a patient.[15] If the doctor has access to a patient’s essential health information, but does not review it, he or she could be liable.[16]

Human Error: Like any complex software program, these electronic record systems require practice to successfully operate. Mistakes can result from insufficient education and training, or simple human error.[17] Providers might document the wrong information into the system, incorrectly copy and paste from old visit notes, or order the wrong test.[18] Effective training of the new system, used in conjunction with the existing technology, can help to minimize these errors.[19] Even beyond human error, these software systems can malfunction or crash, potentially causing provider liability as well.[20]

Availability of Records: EMR systems are meant to collect and consolidate a patient’s records for improvement of quality and continuity of care. However, in the event of a medical malpractice suit, providers must often produce any and all patient records as either defense or proof of the claim.[21] EMRs include a more detailed record than what is generally required in a traditional paper record, which can either help or hurt the provider.[22] There is still great debate over what constitutes the “legal medical record,” which should be provided upon patient request.[23] “Under federal law, EMR metadata –which consists of all electronic transactions such as time stamps of clinical activity and the input of orders—is discoverable in civil trials.”[24] Other, more specific, medical malpractice laws tend to vary on a state-by-state basis. [25]

Electronic health record systems are truly transforming the way healthcare serves patients each and every day. They provide for the circulation of information, continuity of care, and convenience for patients and providers. However, broad and effective adoption of these complex systems is still several years away. Until that time, providers face a higher risk of medical malpractice liability.


[1] See Richard Hillestad et. al., Can Electronic Medical Record Systems Transform Health Care? Potential Health Benefits, Savings, and Costs, HealthAffairs, Sept. 2005, 1103, 1103,

[2] Tracy D. Gunter, Nicholas P. Terry, The Emergence of National Electronic Health Record Architectures in the United States and Australia: Models, Costs, and Questions, JMIR Publications, 2005,

[3] Id.

[4] See James C. Robinson & Lawrence P. Casalino, Vertical Integration and Organizational Networks in Healthcare, HealthAffairs, 1996, 7, 8,

[5] Id. at 9.

[6] See supra note 1.

[7] See Sandeep S. Mangalmurti et. al., Medical Malpractice Liability in the Age of Health Records, New Eng. J. Med., 2060, 2060 (Nov. 18, 2010)

[8] See Molly Gamble, 5 Legal Issues Surrounding Electronic Medical Records, Becker’s Hospital Review (Jan. 19, 2012)

[9] See supra note 2.

[10] Id.

[11] Id.

[12] See supra note 7 at 2061.

[13] See David B. Troxel, Electronic Health Record Malpractice Risks, The Doctors Company, (Sept. 2016)

[14] Id.

[15] See id.

[16] See id.

[17] See Deirdre Fulton, EHR Mess-Ups Put Doctors at Risk for Malpractice Lawsuits, HIMSS16 Speaker Says, HealthCare IT News, (Jan. 26, 2016, 9:57 AM),

[18] See supra note 7 at 2061.

[19] See id.

[20] See id.

[21] See supra note 8.

[22] See id.

[23] See id.

[24] Id.

[25] See id.

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