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Whether EHRs increase overall medical liability relative to their paper-based peers is not yet known. While EHRs may reduce the medical liability for certain errors, it appears that EHRs both create new forms of medical liability and expose existing liability issues in the healthcare environment that might otherwise remain unknown.

It is critical that medico-legal issues and risks be identified and discussed openly as healthcare organizations and individual physician practices invest in and adopt EHRs. The legal landscape related to EHRs is still fluid and evolving, but important progress is being made – research is being conducted, case law is emerging, and standards are being established. The full value of EHR systems will be realized when design and implementation support physician workflow and clinical needs as well as each entity’s medico-legal needs.

A review of 65 EHRs showed that more than 90% of them did not provide adequate medico-legal training and 95% of them had specific medico-legal issues. Either could increase the potential risk of a liability claim and would hamper its defense. The EHR vendor community should strongly consider external reviews of their software for potential medico-legal issues that may have been missed by internal reviews due to employee familiarity with the process and the product.

Health Information Technology (HIT) has a history dating back almost 50 years to its origins in bioinformatics. The earliest HIT pioneers considered how best to encode and store information about patient treatment, but were limited primarily to basic science research projects or managing patients in their own institutions. Only in the last 30 years have there been an increasing number of larger corporate interests, developing products intended to reach a broader industry audience. Despite several decades of development, marketing, and sales, penetration into both the hospital and medical practice environments has been limited and fairly stable.

There are many reasons attributed to the challenge of selling a commercially viable HIT solution into healthcare organizations:

•   inadequate involvement of end users in development (see NIST usability study)
•   high software cost
•   high cost infrastructure needed to support HIT
•   increased personnel costs during the selection and implementation stages
•   coupled with revenue reduction due to lowered productivity during those stages
•   change management challenges
•   coupled with limited education and training of stakeholders
•   poor clinician training because trainers are often not clinicians