In the last few years there has been a tremendous push by the U.S. government to encourage healthcare providers to transition to electronic medical records (EMR). The 2009 HITECH Act offers incentives of roughly $44,000 per physician to promote EMR adoption. While that has enticed many providers, we are still nowhere near the government’s goal of eradicating paper records in the process of patient care.
In research I conducted with Prof. Amalia Miller of the University of Virginia, we studied EMR adoption by hospitals from 1994-2007 and found that a significant deterrent to EMR adoption is malpractice litigation. Our evidence showed that hospitals located in jurisdictions that facilitate the use of electronic records in malpractice litigation were one-third less likely to adopt EMR.
Proponents of EMR systems maintain that they allow providers to store and exchange information about their patients’ medical and treatment histories, improving patient care and reducing administrative costs. But by automating documentation of a patient’s care, EMRs include more detailed information about patient care than traditional paper records. As a result, plaintiffs’ attorneys may make extensive discovery requests for “relevant” electronic records in medical malpractice litigation until they find something useful in the case.
An example is the case of a patient who was left quadriplegic after surgery. Although the patient initially focused on the surgeon’s competence, he switched his focus to the anesthesiologist’s competence after the EMR showed a time-stamp that cast doubt on whether the anesthesiologist was present for the entire procedure.
There is an issue of asymmetry in that the thing that might protect a defendant could show up in the EMR, but the plaintiffs’ attorneys can keep on digging in the data until they find something else. It’s easy to keep on looking to find the smoking gun, but much harder to look to find the golden defense in the data.
For EMR adoption to be more widespread, policymakers should think about how they can systemize and regulate the use of e-data in court cases in order to make it clear what types of data will be allowed and will not be allowed. Their efforts should be coupled with clear guidance on the use of e-data in court proceedings, to reduce hospitals’ perceived uncertainty about potential malpractice costs from EMRs.
Prof. Catherine Tucker coauthored the paper, “Electronic Discovery and the Adoption of Information Technology” with Prof. Amalia Miller of the University of Virginia.