Electronic Health Records and Considerations for Medical Malpractice


The area of medical malpractice is legally fraught with defensiveness from the medical community, and constant review and reform in the United States. While litigators feel that the consequences for medical malpractice help to govern and reduce medical errors (effectively policing and providing monetary penalty for inaccurate or negligent practice), physicians feel that tort laws allow for sizable settlements that encourage patients to cry malpractice, even when there has been no negligence involved.

In response to physicians and the monetary penalty – including increased malpractice insurance rates for institutions and care providers who have multiple infractions – many states have reformed tort law to limit punitive damages. In 1975, the State of California enacted the Medical Injury Compensation Reform Act, which capped non-economic damages to a limit of $250,000 (a model many other states have since followed).

The digitalization of the healthcare system in the United States offers many advantages to improving patient care and protecting doctors and healthcare providers from malpractice by improving the accuracy of health records, treatments, and patient health history. While slow to adopt the new Health Information Exchange (H.I.E.) nationally due to expense and sweeping administrative and procedural changes, this may do much for doctors and other providers, including reduce the rates of medical malpractice.

How Does the Law Define Medical Malpractice in the United States?

There are three main aspects that define error and negligence within medical malpractice law,  and they apply equally to all healthcare providers – including doctors, nurses, dentists, pharmacists, or other related healthcare providers such as physical therapists, psychiatrists, and medical aids.

Medical malpractice involves a breach of what is understood as the diligent duties that each healthcare provider should deliver to the patient. Negligence happens when:

1) A duty of care was expected by the physician. This is a contract and expectation of a family doctor who has the responsibility to care for his or her patient, because he or she is accepting payment for services, or has been identified as a regular care provider for the patient.

2) The physician violated the applicable standard of care. What this means is that, during treating the patient, the doctor failed to use expertise, medical methods, follow up, or documentation to provide the benchmark services (and outcomes) expected from a physician.

3) The patient suffered an injury that can be measured as a loss. This can vary from a non-resolution of the health symptom (where resolution was probable), or a secondary condition, infection, injury, or life-threatening health crisis that was the direct result of receiving insufficient care from the physician.

4) Proof that the injury was caused by substandard care, treatment, or follow up by the doctor or his/her medical care team. This can include a variety of situations from poor or inaccurate prescribing, inaccurate or needless surgery, or failing to provide care instructions or resources to address a health concern where the patient suffered a complication because of the omission of accurate or timely care by the physician.

Prior to 1970, when the first laws were formalized regarding malpractice within the United States, the healthcare industry was subject to a problem many litigators referred to as the "conspiracy of silence." The implication was that doctors and other care practitioners would not report medical care that was substandard – which may have worsened a patient’s condition – or errors that may have contributed to a patient fatality.

What Is Electronic Health Information Exchange?

In the United States, all medical care facilities are now required by law to participate in electronic health information exchange. The transition to electronic medical records started in 2009, and involves private practices, hospitals, long-term health care facilities, and home health agencies in an effort to more accurately record and monitor patient healthcare services and improve health outcomes, while reducing readmissions and clinical errors.

The introduction of electronic health information exchange now means that doctors and nurses have an accessible snapshot of health history, test results, prescription medications, and therapies that have been administered to their patients.  

How Accurate Documentation Can Protect Medical Practices and Physicians?

Whether physicians work in a clinic, a private practice, or as part of the healthcare team in a larger institution (such as a nursing home or hospital), caring for as many as hundreds of patients a day can lead to both exhaustion and clerical chart errors. Clerical errors and omissions in patient care can have serious – if not fatal – consequences, and places healthcare teams and institutions at increased risk of liability and malpractice suits.

The digital advancement of patient records in the United States offers a significant opportunity to reduce, and eventually eliminate, human errors that contribute to medical malpractice. This will save doctors, healthcare institutions, and the insurance industry millions annually.


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