Tuesday, March 06, 2012

AMA News Article Offers Incomplete (and Thus Misleading) Advice on the Legal Risks of EHRs and other Clinical IT

An article was published in the AMA News by Alicia Gallegos, AMA Medical News staff, entitled "Legal risks of Going Paperless." While it is not clear if these are the official views of the AMA leadership, the article is interesting nonetheless.

It should perhaps have been entitled "Some of the Legal Risks of Going Paperless, excluding the ones that make the health IT industry look bad:"

Legal Risks of Going Paperless
AMA News
March 5, 2012

Electronic medical records are meant to save time and money, but they also can create liability issues for doctors.

By Alicia Gallegos, amednews staff.

Defense attorney Catherine J. Flynn knows how electronic medical records can overwhelm — and often change — the course of a medical liability lawsuit.

In one of her cases, a New Jersey doctor being sued for medical negligence has been accused by a plaintiff’s attorney of modifying a patient’s electronic history. A printing glitch caused the problem, Flynn said, but the accusation has meant extra time and defense costs. Computer screen shots were reviewed, more evidence was gathered and additional arguments were made.

“This has taken a life of its own, and we’ve done virtually no discovery on the medical aspects of the case,” she said. “The cost of the e-discovery alone is in excess of $50,000.”

This is a variation on the theme of plaintiff's lawyers being the cause of EHR problems as I wrote at "Plaintiff's Trial Lawyers Are to Blame for EHRs That 'Tattle' on Doctors - And Harm Patients."

System breaches. Modification allegations. E-discovery demands. These issues are becoming common courtroom themes as physicians transition from paper to EMRs, legal experts say. Not only are EMRs becoming part of medical negligence lawsuits, they are creating additional liability.

Missing is the problem that is most important of all: health IT system defects, poor user interfaces, unreliability, data loss, etc. causing or contributing to medical malpractice that results in patient harm or death. (An example that I personally observed and reported to the FDA MAUDE database is here; there are numerous others in this blog.)

Data breaches are among the most common reasons that electronically stored information lands doctors in court, said Lisa Gallagher, senior director for privacy and security at the Health Information and Management Systems Society, which advocates health information technology

Most common perhaps (a big problem unto itself), but not the most clinically significant problem. Yet the AMA article goes on about this issue for many paragraphs; it's the prime focus of the article.

A 2011 ruling in New York highlights how e-discovery creates a burden for doctors.

During a lawsuit against St. Luke’s Hospital Roosevelt Center, a debate arose about whether the plaintiff should be allowed access to screen shots from a doctor’s computer. Joan Bowman, who sued the hospital for wrongful death on behalf of her husband, wanted to see a computer template used to aid physicians in diagnoses. The hospital said the request was overly broad and oppressive.

But the Supreme Court of the State of New York ordered the release of the screen shots.

“Defendant doctors testified that they utilized these materials in coming to their diagnosis,” Judge Alice Schlesinger wrote. “It is not a stretch to allow counsel to see and understand these materials.”

At this article’s deadline, the hospital’s attorney had not returned messages seeking comment.

The case sets a precedent, said Susan Dennehy, Bowman’s attorney.

“If others want to see screen shots from records, I think they’ll rely on this case,” she said. “It was important to see where the template led you if you put in an inaccurate chief complaint.”

Note the "spin" about the "burden for doctors" of eDiscovery. To the pundits and voluntary adopters: you have gotten what you asked for. To the non-pundit clinicians forced to use health IT: I hate to say this, but you've gotten screwed.

The article then offers a laundry list of how to avoid EHR-related liability:

... As the number of electronic medical records increases, so do certain legal risks, medical liability experts say. Common mistakes doctors make with EMRs and how attorneys recommend that physicians reduce their liability risks:

Mistake: EMRs allow users to move quickly through patient records, but cutting and pasting information makes it easy to paste incorrect information.
Recommendation: Refrain from copying and pasting EMR data, and be cautious when moving from one patient’s record to the next.

Mistake: Computer programs can help doctors make a differential diagnosis, but the templates don’t often include every possible symptom and corresponding medical condition.
Recommendation: Doctors should not become overly dependent on electronic diagnosis aids. Electronic systems are no substitute for hands-on diagnosis.

Mistake: Because EMRs allow physicians to move through patient charts much more quickly than paper charts, attorneys are noticing that some doctors are not being thorough when writing notes electronically.
Recommendation: Physicians should keep meticulous electronic notes on each patient and take time to document each chart.

Mistake: Some practices can fail to safeguard electronic patient data.
Recommendation: Practices should encrypt all information on computer devices and have policy that discourages employees from taking portable devices out of the office.

Mistake: A system may not clearly indicate changes to records.
Recommendation: Physicians should install systems that show transparency when modifications are made and/or have a program lockout period where no more modifications can be made to a record.

Mistake: Doctors may fail to follow notification requirements in the event of a data breach.
Recommendation: Be clear on what your state law requires when a data breach occurs, and make sure employees follow the rules immediately.

Mistake: Doctors may destroy or delete electronic records when a lawsuit is possible.
Recommendation: If doctors suspect they are being sued, they must preserve all electronic data related to the patient in question, including emails, phone messages and computer records.

Missing is this, as is well-covered by almost 8 years of posts on this blog, and elsewhere:

Big mistake: Doctors and hospitals buy and implement experimental technology approved by nobody, of uncertain quality to the point of losing or corrupting data, often with glass-tube black-and-white TV user interface modernity. Such technology is "errorgenic", i.e., it promotes "use error", can mislead, and can promote medical errors.
Recommendation: Hold off until the industry has gotten its act together.

Also missing from the AMA News article is the fact that physicians and hospitals use health IT at their own risk, even if the IT is "certified."

This article is clearly pregnant with omissions and spin that reveal a pro-health IT bias.

-- SS

1 comment:

Anonymous said...

The AMA has missed the point on the dangers of HIT devices and the legal implications. It is a reason why I delisted from this organization.