The legal pros and cons of e-prescribing

Though some physicians contend that the new standards for electronic prescribing from the Centers for Medicare & Medicaid Services (CMS) aren’t sufficiently comprehensive to spur an immediate groundswell of e-prescribing adoption, attorneys agree that implementation can carry substantial legal benefits.

The biggest benefit is the reduction of errors, particularly from a legibility standpoint, says Boston lawyer Colin Zick.

“First and foremost, you eliminate the handwriting issue,” says Zick, who practices with Foley Hoag. “If you’re presented with choices of drugs [on a screen] and you tap on a particular one, you’ve sent the right choice.”

Additionally, many systems have intelligent features that check the prescription against whatever else is in the patient’s electronic medical record and prompt the physician to double-check in the event of a suspected input error, Zick says.

“It can do the same thing with dosages. There are all sorts of ways to apply the technology with an aim to reduce error,” he adds.

In addition to handwriting errors, e-prescribing can eliminate transcription errors that may occur at the pharmacy when receiving phoned-in prescriptions, says Linn Foster Freedman, a health care lawyer and partner at Nixon Peabody in Providence, R.I.

“My husband is a physician and I hear him calling into pharmacies all the time, especially on the weekend when a patient calls in need of a prescription,” she says. “A lot of times he’s leaving a prescription on a voice recorder or answering machine. The risk associated with voice messaging of different medications is significantly reduced with e-prescribing.”

E-prescribing can also reduce risks created by similar-sounding drug names, says Boston attorney David Szabo, a partner at Nutter, McClennen & Fish.

He explains that with so many new medications coming out, drug companies and pharmacies are running out of names.

“Some sound very similar even when they’re very different – either different-acting or for a different purpose,” he says. “Paired with the legibility issue, this creates a risk of mix-ups or transcription errors on a piece of paper a patient is handing to the pharmacist.”

But to glean the full risk-management benefit, lawyers agree that the transaction must be paperless at both ends. This means doctors should think twice about systems that transmit prescriptions to a pharmacy by fax.

E-prescribing by fax is not only noncompliant with the new CMS standards, but it creates a risk of transcription errors at the receiving end, Szabo says.

“They can print the thing out on a fax machine, but someone has to type it in again on a keyboard or write it on a piece of paper,” he says.

Drug interactions are the other big safety issue addressed by e-prescribing, says Zick. If all the entities involved in the transaction are in contact about the medications a patient has been taking or is currently taking – as e-prescribing allows for – it can reduce the potential for adverse events, he says.

However, e-prescribing also presents significant traps for the unwary. As with any kind of electronic transaction, information security and patient privacy are the two biggest potential trouble spots, attorneys say.

Accordingly, Freedman urges providers to be aware of relevant security and privacy provisions in both HIPAA and Massachusetts state law.

“You want to be able to prevent breach, hacking and inadvertent disclosure of that information,” she says. “More than that, if a physician is prescribing things like Prozac or methadone, there are additional safeguards that must be taken to ensure that there’s no breach or disclosure of such sensitive information.”

Zick adds that doctors who do their e-prescribing using handheld devices need to be particularly careful.

“In the trade press, not a day goes by where you don’t see that some provider has lost a laptop or other device with someone’s health information on it,” he says. “If you’re working off a handheld and it has everyone’s prescription information and it’s not password protected, then it’s just like losing a cell phone or a BlackBerry. But instead of phone numbers or e-mails, you have 100, 1000 or 2000 prescription records.”

This means providers need to install the right kind of security on these devices or they could wind up with issues under both federal and state privacy law, Zick says.

Finally, Szabo urges providers to maintain good backup systems in case of outages or waterpipe leaks.

“Have your records backed up every day so you can always restore your records of prescribing activity so you can produce them later on in case of an audit,” he says. MMLR

— Eric Berkman