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Vanderbilt Journal of Entertainment & Technology Law

Blake Carter

First Page

385

Abstract

The cost and quality of health care is and most likely will continue to be one of the most important issues that the United States faces in the coming decade. Although no powerful antidote exists to cure this industry of all of its ailments, one potential suggestion to treat some of the symptoms is the introduction of electronic medical records (EMRs).

Members of the medical community, patients, and even politicians all agree that EMRs offer promising opportunities to improve the overall quality of health care. However, lost in the discussion of these opportunities, is a consideration of the potential side effects of EMRs.

One such side effect is that physicians and other health care providers may face additional liability exposure due to the introduction of EMRs. A medical malpractice claim closely tracks that of a typical negligence claim, holding the health care provider to a duty of care. This duty of care asks whether the provider offered medical care in the way a reasonable professional would.

The unchecked introduction of EMRs has the potential to raise the standard of care for health care providers in many ways. Additional liability for providers could come from a failure to perform all of the extra steps required by the consultation of EMRs, a failure to spot something in a medical history that may be incomprehensibly complex, or a simple failure to utilize this technology at all. A 2003 Oklahoma Supreme Court decision offers an early example of how these cases may play out.

To encourage the introduction of EMRs, both the federal and state governments should take steps to protect health care providers from these side effects. These steps may include the funding of a federal mandate for the nation wide adoption of EMRs or the introduction of statutory protections on a state-by-state basis to ensure that health care providers do not face unreasonable liability exposure.

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