Liability Concerns Hindering EMR Adoption

The Obama administration is pumping $19 billion into the healthcare industry to help defray the costs of digitizing medical records and enable collaboration amongst medical providers. Electronic medical records promise greater efficiency and productivity, but healthcare providers are worried about their liability resulting from software errors. Those concerns could create a barrier to sales for solution providers.

These liability concerns are keeping many physicians from investing in EMR systems. According to federal authorities, only one in four physicians has adopted EMR. And those adopters are typically confined to large medical practices.

Yesterday, the Institute of Medicine – the company contracted by the government to review EMR adoption and implementation – convened the first meeting of its Committed on Patient Safety and Health Information Technology. At issue is who should be liable for errors resulting from software defects and system malfunctions.

Standard software licensing agreements absolve the manufacturer of any liability or responsibility for damages caused by coding errors, security vulnerabilities or misuse. It’s a legal “caveat emptor”. This is why companies like Microsoft, Oracle and Adobe are not responsible for the ill-effects of vulnerabilities in their software. In the healthcare world, this standard insulating language extends beyond software performance and business operations to the errors in medical services that could affect patient lives. The American Medical Informatics Association has called the “hold harmless” clause “unethical”.

What’s concerning to the government and prompted the inquiry by the Institute for Medicine is the number of errors attributed to EMR. The Federal Drug Administration says it’s received 260 reports of EMR errors “with the potential for patient harm”. Of those reports, six resulted in death.

Studies have found EMR (or as some call “electronic health records”) are more about improved information than productivity. Studies show digital recordkeeping result in decrease diagnostic, prescription and treatment errors. Experts believe EMR problems are more a reflection of having more information to identify errors. The real problem, they say, are the vast majority of errors continue to go undetected.

Perhaps that’s part of the great EMR misnomer: productivity gains.EMR is supposed to result in productivity gains that free doctors and clinicians of tedious tasks associated with recordkeeping. One solution provider specializing in health practices says EMR actually detracts from productivity. Rather than racing through paper-based forms, doctors must wrestle with prescribed and detailed recordkeeping steps dictated by EMR systems. Completing entries takes more time, but results greater information accuracy.

Federal stimulus dollars for healthcare software systems will start flowing in earnest. What solution providers may find when they approach their doctors is a double-edge concern over productivity drains and increased liability exposure. These are two concerns that are not easily assuaged.