Malpractice Attorneys Eager for EHR

In her blog on EHRWatch.com, Patty Enrado discusses a different argument for adoption--malpractice law suits.

The title of her blog is "Are tort lawyers anxiously waiting to use EHR's in malpractice suits?" In her blog, she makes reference to an article published by Dr. Samuel Bierstock in Modern Medicine last week. Dr. Bierstock discusses his concern for President Obama's focus on adoption of EHR and not tort reform.

Many physicians fear adoption of EHR will put them at increased risk. In fact, if you really sit down and talk with physicians who have not adopted an electronic record keeping system, most will express concerns of increased liability.

It is rare to find a profession that is in constant risk of law suits that can be devastating not only to their career but to their families, homes, and assets. Dr Bierstock goes on to explain, "how many of you would want to use such a system in your work knowing that your every thought and action could be audited and evaluated by others who make their living suing you?"

EHR's can track how long a doctor looked at a document, if he or she scrolled down to read the entire thing, how long it took to respond to an alert or notification of an abnormal result, how long it took to answer e-mail, and the accuracy of every assessment and action. It can track whether their decisions meet the most recent guidelines or research results in a world where thousands of new papers and research results are published every week.

I think that Dr. Bierstock stated it quite well when he said, "Personally, I might like to know that I can finish dinner or brush my teeth before responding to a real-time alert that someone's blood sugar was a little high without someone suing me because I took too long to act." As a practicing physician and an active member of the American Health Lawyers Association, I completely understand his concerns. As healthcare providers our training teaches us how to approach problems and how to solve them. Our training also teaches us to anticipate adverse events and to weigh the risks and benefits of a treatment or action before proceding. Of course, physicians are going to be hesitant to change something that may actually be hazardous to their career health and stability. Maybe EHR's should come with a label on the side just as cigarettes do.

Putting reactivity aside, how do we sift through this air of mistrust? The Institute of Medicine's publication 'To Err is Human: Building a Safer Health System' in 1999 illuminated the unfortunate reality of medical errors in the healthcare industry. Realizing that many of these errors could be prevented, the Joint Commission (formerly JCAHO) set out to help change this trend.

Anyone in healthcare knows that nervous feeling when they hear, "The Joint Commission is here today." The nervousness doesn't come from guilt; it comes from the fear of getting fined for the small stuff. Getting fined $10,000 for having an open water glass at the nurses station seems a bit ridiculous--but it is a rule.

On the other hand, organizations like The Joint Commision have made 'root cause analysis' part of our vocabulary. In short, root cause analysis is defined as a process for identifying the basic or causal factors that underlie variation in performance, including the occurrence or possible occurrence of a sentinel event. But the purpose of root cause analysis is to actually prevent bad outcomes in the future. Many times medical errors do not reflect malice or negligence.

Learning from mistakes is key. Institutions utilize the root cause analysis method to clearly identify factors that can be addressed that can possibly prevent a bad outcome from occuring. Most cases of medical error can be mitigated if it is shown that the institution is aware of the basic or causal factors AND has instituted a risk-reduction strategy to address such factors.

If we are implementing EHR's, then it seems logical that we will discover inefficiencies and areas that require improvement. One of the founding principals for root cause analysis is that blame be shifted away from individuals and more towards organizational processes or risk-reduction strategies. Will the malpractice lawyers allow us to do root cause analysis as we roll out EHR's or are they lying in wait to pounce on the first ones to stick their necks out? I fear that the latter is true.

There are already many cases that have been tried using EHR's as the witness. I discussed this very topic with a colleague from a hospital consortium near Los Angeles recently. He explained that he acted as a defense expert in a Federal Court where he found the care of the patient to be excellent but the judge misinterpreted the EMR and seemed computer iliterate. Further, the software company responsible for the EMR actually "hung [the defense] out to dry."

I am excited about the future of electronic health records. However, I even more excited about what types of tort reform are coming to help protect the "medical public."

Jonathan S. Ware, MD