WASHINGTON — From a liability perspective, health information technology remains a double-edged sword whose parameters still need to be spelled out, experts said at a meeting on sponsored by eHealth Initiative and Bridges to Excellence.
When it comes to electronic clinical decision support (CDS) tools, Jud DeLoss, vice chair of the HIT Practice Group at the American Health Lawyers Association, recommended that physicians document their reasoning when they disregard the tool's suggestion.
Although it would be “difficult to pull off,” attorneys could create a class of victims for whom they argue that clinical decision support was not followed, leading to detrimental results, he said.
Conversely, attorneys could charge that a physician overly relied on the tool “and did not actually engage in the care they said they did.”
Attorney Marcy Wilder, a partner with Hogan & Hartson, Washington, pointed out another gray area created by HIT: delineating who contributed what sections to a patient's electronic health record.
“Look at the paper system,” Ms. Wilder said. “We have handwriting and signatures, which are simple tools to identify who's responsible for which clinical applications, which provider made the diagnosis, who authorized the medication change. It is both easier and more difficult to do that with electronic health records.”
The simplicity and efficacy of identity authentication “is going to depend upon the extent to which the vendors that are building the systems get this right,” according to Ms. Wilder.
Although systems are in place to address identity authentication in health care institutions, problems may arise when data from shared information warehouses—such as a regional health information organization—are incorporated into an electronic medical record, Ms. Wilder said.
“That's where it's going to be very messy, and I think it will be a long time before we are going to be using shared data warehouses in part because of those kinds of liability issues,” she said.
Mr. DeLoss and Ms. Wilder added that as use of electronic medical records grows, physicians may have a duty to be familiar with a patient's entire medical record if it is available.
In their contracts with hospitals, physicians spell which party is liable for problems that arise from software donated to them by hospitals.