Will electronic records raise the legal standard of care and increase malpractice risk?

Originally published in HCPLive.com

by Robert J. Mintz, JD

As EHRs are widely adopted and the quantity of information about a patient expands dramatically, does provider liability increase even if the quality of care is vastly improved?

What happens if the quality of care really does get better but because of all the new and easily accessible information, the standard of care for legal responsibility increases? With EHRs, plaintiff’s lawyers will make the case that greater access to patient information should result in better diagnoses and treatment outcomes. As a result, even as quality increases, the legal standard of care will keep rising too, so that rather than fewer mistakes and fewer lawsuits, there are more of each since the information you “should have known” is now right at your fingertips.

An example of how theories of liability expand along with available information is illustrated in a case now before the Nevada Supreme Court (Sanchez vs Wal-Mart Stores). The case is reportedly the first legal test of whether a pharmacy can be liable if a customer causes a fatal car crash after taking medication dispensed by the pharmacy. As recently reported in the Wall Street Journal, over a period of several years and using multiple pharmacies, Patricia Copening, a 35-year-old medical receptionist, repeatedly obtained and filled prescriptions for a variety of painkillers. On June 4, 2004, after apparently mixing carisoprodol and hydrocodone into a potent combination known as a “Las Vegas Cocktail,” Ms. Copening was seen crashing into 21-year-old Gregory Sanchez, who had pulled over to the side of the road to repair a flat tire.

Although pharmacies can be held liable for mistakes they make in preparing prescriptions, generally they are not responsible for the specific effect of the medication on the patient or third parties who may be injured by the patient. The general rule is that the pharmacist is not legally required to make an independent evaluation of the potential consequences of a medication prescription written by a physician.

What happens when the provider of the medication, the pharmacy, has reason to know that the medication may cause injury to the patient or another person? Should the standard of legal responsibility be altered in some respects? This is a similar question to that posed by the so called “dram shop” laws, which impose liability on bartenders and liquor stores (and party hosts) that serve alcohol to minors or intoxicated patrons. But how would the pharmacist know that the medicine for a particular customer might pose a danger to anyone?

This is the dispute at the heart of the Sanchez case. According to the Wall Street Journal article, a total of 33 states now offer online prescription-tracking databases. Although the type of information maintained differs between the states, this information is shared among pharmacists, doctors, and law enforcement with the goal of identifying potential drug abuse. When Ms. Copening filled her prescription prior to the fatal accident, the pharmacist failed to check the available computer records that showed she had filled similar prescriptions for more than 4,500 doses of the drug at various pharmacies within the same year. The state board had in fact notified this particular pharmacy, as well as 14 others, that based on the quantity of prescriptions she obtained, Ms. Copening was suspected of drug abuse violations.

The lawsuit filed by the victim’s family alleged that, based on the available information in the database, the pharmacy should have known that Ms. Copening was a danger to herself and others and that this negligence led to the death of Mr. Sanchez. Unlike an intoxicated patron whose behavior provides observable evidence of his condition, a drug abuser may exhibit no noticeable behavior in the few minutes it takes to fill a prescription. But if the evidence of dangerous abuse is readily available along with the patients’ records, the availability of this information may be sufficient to raise the legal standard of responsibility. That’s what the plaintiffs in the case are arguing and the Nevada Supreme Court is considering at this time.

In many states, physicians already have an established duty to third parties who might be injured by a patient. The obvious relevance of this case is the potential expansion of liability for physicians based upon increasing access to patient health records. Ultimately, these records will cover a lifetime of medical care, and the legal standard of care for medical decisions is likely to encompass knowledge of this medical history and its potential impact on the current diagnosis and treatment options. For many time-constrained physicians, new standards and responsibilities will certainly be a difficult challenge to meet, and planning for EHR adoption will involve not only business and medical concerns, but serious legal issues as well.

Robert J. Mintz is the author of Asset Protection for Physicians and High-Risk Business Owners.

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