The 2012 case of Burkett v. Advocate Health & Hosp. involved an infant who received an intravenous solution that was prepared with over sixty times the appropriate amount of sodium and, as a result, died a few hours later. The immediate cause of the death was that a technician typed incorrect information into an electronic health record (EHR) data field. However, several other problems related to the EHR system contributed to the tragedy as well. Automated alerts on the intravenous (IV) compounding machine that could have identified the error were not activated. In addition, a lack of interoperability prevented the doctor's order from being transmitted electronically to the automated compounding system for IV bags. Therefore, a technician had to read the order and enter the information, and an opportunity for human error was created. The case settled for $8.25 million.

While advocates fervently hope that EHR system adoption will significantly reduce medical errors and related medical malpractice lawsuits, it is not at all clear that this hope has been fulfilled thus far. The many EHR shortcomings that were discussed in Chapter 1 might make clinicians just as vulnerable to malpractice suits as they were in the paper era, if not more so. In addition, working with complex EHRs rather than traditional paper files might make the litigation process more cumbersome and difficult.

Liability concerns have arisen in both the United States and elsewhere. An independent European advisory body issued a report entitled “Working Document on the Processing of Personal Data Relating to Health in Electronic Health Records” in 2007. The report includes a section entitled “Liability Issues.” It urges European states that are implementing EHR systems to conduct “in-depth, expert civil and medical law studies and impact assessments to clarify the new liability issues likely to arise.” These issues may involve the “accuracy and completeness” of EHR data, the extent to which treating physicians must study patients’ EHRs, technical failures that prevent clinicians from accessing EHRs, and more.