Liability and the EHR The Maine Association for Healthcare Quality Annual Fall Education Program November 28, 2012 Cheryl Peaslee RN, BSN, MBA, CPHQ Vice President, Risk Management
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Liability and the EHR
The Maine Association for
Healthcare Quality Annual Fall Education Program
November 28, 2012
Cheryl Peaslee RN, BSN, MBA,
CPHQ
Vice President, Risk Management
Objectives
• Identify EHR features that may contribute to safe patient care
• Recognize liability risks associated with use of the EHR
• Discuss strategies to mitigate EHR related liability risks
The story begins…
Chapter 1:
How did we get here?
ONC Data Brief ■ No. 1 ■ February 2012
Chapter 2:
The Dream
Welcome to Oz
EHR
• Improve health care quality, consistency, and patient safety
• Prevent errors and malpractice claims
• Promote complete documentation
• Provide timely access to patient information
• Facilitate sound clinical decision making
• Improve communication between providers
• Limit duplication of tests
Chapter 3:
The demise of the Wicked Witch of
the East
The Wicked Witch of the
West vows revenge …
What threats are we seeing?
Issues with…
• Cloning, Default, Cut and Paste
• Auto Population
• Hybrid Systems
• Lack of Integration
• Information Access Expectations
• Templates
• Clinical Decision Support
• E-Discovery
• Smartphones
• Security and Privacy
Information Overload
• Multiple sources of information
• Repetitive information
• Patient addendum
• Paper and electronic
In the Queue – Click Through
“ I was away from the office for 4 days and when I returned I had 452 items in my inbox! Do you really think I have the time to read each individually?”
The Lack of Integration
Integration is part of the impetus and objective for EHR adoption, yet even within some health systems this has yet to occur
The Devil in Design
From a Pediatric Cardiologist
If you type:
12# = pounds
12[space]# = kilograms
If you type:
12lbs = 12 pounds
But if you type 12 [space] lbs = 12 kilograms
“Of course there have been errors!”
EHR Event of the Month from PDR Network
The Audacity of Auto-population
In deposition, a neurologic exam of a 1-year-old boy revealed the boy was oriented to time, place, and person.
The plaintiff’s attorney:
• So is the information in this record accurate or not?
• Do you bother looking at your records?
• If these ‘auto-populated’ fields are incorrect, can we trust anything in this record?
• Do you deliver the same level of care as you do in your record keeping?
Medical eRisk Considerations for Online Communication
The Trouble with Templates
The Problem with Predesigned Processes
TEST ORDERED
TEST COMPLETED
RESULT RECEIVED
TO ORDERING PHYSICIAN INBOX
RESULT REVIEWED
TREATMENT PLANNED
PT NOTIFIED
Potential Problems with the Patient Portal
• MU: Use secure messaging to communicate with patients on relevant health information (more than 5%)
E-Communication
• Physician Insurers Association of America report:
o $71.8 million in indemnity payments were made for 786 telephone-related malpractice claims
Chapter 4:
More evidence of
issues…
The Apple Throwing
Trees
From Reports to the FDA
User Entry Errors:
• A technician mistakenly enters DOB of a baby instead of the study date, making a chest x-ray appear older than it was.
A radiologist viewed the image for central line placement.
Seeing that the comparison image did not have the line present, they concluded that the line had been removed and did not verify placement.
Unfortunately the line was placed too far in the infant and the pre-mature baby died.
From Reports to the FDA
• Three patients continued to receive antibiotics because a CPOE did not support discontinuation and modification of orders.
• Failure of a system to produce reports following a software upgrade was associated with a patient missing out on a liver transplant.
Clock Synchronization
An eight-minute difference was noted between the computer and the cardiac monitor…
Pennsylvania Patient Safety Authority
ECRI TOP 10 HEALTH TECHNOLOGY HAZARDS
FOR 2013
4. Patient/data mismatches in EHRs and other health IT systems
5. Interoperability failures with medical devices and health IT systems
9. Caregiver distractions from smartphones and other mobile devices
Caregiver Distraction
Resident was using her smartphone to enter an order to stop anticoagulation therapy
Before completing the order the resident received a personal text message
Resident responded to message by text, but never went back to complete the order
Anticoagulation therapy continued for several days
Pt developed conditions that necessitated emergency open-heart surgery
(Halamka 2011)
As Doctors Use More Devices, Potential for Distraction Grows
• Neurosurgeon making personal calls during an operation
• O.R. nurse checking airfares in the middle of a procedure
• Technicians monitor bypass machines while talking on cell phones; texting
AANA Position Statement:
“Non-essential distractions, especially those associated with use of mobile devices may lead to significant patient safety lapses”
U.S. Warning to Hospitals on Medicare Bill Abuses
The letter reminded hospitals that a patient’s medical information “must be verified individually to ensure accuracy: it cannot be cut and pasted from a different record of the patient, which risks medical errors as well as overpayments.”
Notes from Your Licensing Board
“The volume of repeated information in an EMR helps fulfill the necessary components of a visit that are required for Medicare billing, but often does not accurately or adequately represent what the physician has done.”
Chapter 5
And then there is…
The Field of
Poppies
Chapter 7
The Flying Monkeys
“I’ll get you my
pretty…”
Clinical Decision Support
• Clinical guidelines
• Clinical reminders
• Drug allergy alerts
• Drug–drug interaction alerts
• Drug–laboratory interaction alerts
• Drug dose support
Metadata
Metadata will show:
when a user logged in
what portions of the record were reviewed
how long review occurred
what changes were made
when the record was closed
James W. Saxton, Esq., is Chairman, Health CareLitigation Group and Co-Chair, Health Law Group,and Todd R. Bartos, Esq.,is a Shareholder, HealthCare Litigation Group,Stevens & Lee, P.C.
Discovery
Pertains to pretrial access to witnesses or documents:
• Oral depositions
• Interrogatories
• Paper documents/records
• Electronically stored information (ESI)
Legal Hold
• An unexpected acute negative patient event resulting in a significant injury
• Attorney requests for medical records for potential medical malpractice cases
• The pro se patient who submits a records authorization for the same purpose
Matthew P. Keris The Legal Intelligencer February 14, 2012
E-Discovery
Electronically stored information (EIS) in any medium:
• Emails
• Text messages
• Voice messages
• Mobile phone data
• iPad
• Thumb drives
• Camera
• Laptops
Electronic Discovery Response Plan
Where does the data reside for what dates?
Where is backup data stored?
Where are documents saved on the network?
Where are e-mail, text messages kept?
How is metadata obtained?
Is archive on local drives, removable media?
Must deleted files be recovered and produced?
In what form must the data be produced?
Can existing IT staff handle the workload?
Electronic Discovery and Record Production Sandra Nunn, MA, RHIA, CHP
The Printed Record
Electronic medical records were not meant to be printed.
Screen Shots from the Past
• 2007: 1st version of EHR when the care at issue occurs
• 2008: first request for record, upgraded to 2nd version
• 2009: suit is filed, 3rd version
• 2010: written discovery begins, 4th version is in place
• 2012: depositions occur, EHR in 6th version
Matthew P. Keris The Legal Intelligencer February 14, 2012
Chapter 8
Where will the road
lead?
The Future: Liability
• Better access to clinical information through EHRs could create legal duties to act on the information.
• Widespread use of clinical-decision support may solidify standards of care that might otherwise be subject to debate.
• Rise of HIEs may heighten clinicians’ duties to search for patient information generated by other clinicians.
• Failure to adopt and use electronic technologies may itself constitute a deviation from the standard of care.
The New England Journal Medicine
Chapter 9
But then there is the
Good Witch!
Progress in Achieving
the Dream
Yale–New Haven Hospital (YNHH)
When data indicated underuse of heparin, a process change occurred . Following the process change, correct dosing increased from 60% to 95%.
The Commonwealth Fund Using Electronic Health Records to Improve Quality and Efficiency
Sentara Norfolk General Hospital
Early warning system that displays patient room numbers:
• green - patient vitals are as expected
• yellow - some deterioration in patient condition
• red - prompts clinicians to log on immediately
This strategy has led to a reduction in codes.
The Commonwealth Fund Using Electronic Health Records to Improve Quality and Efficiency
New York–Presbyterian
Implemented a patient identification feature to avoid clicking on the wrong patient and mistakenly entering orders. Since implementing this feature, they have reduced wrong-order writing errors by 70%
The Commonwealth Fund Using Electronic Health Records to Improve Quality and Efficiency
Gundersen Lutheran Medical Center
A study of Gundersen’s experience* found positive effects on quality:
• medication errors per 1,000 hospital days decreased from 17.9 to 15.4
• “near misses” per 1,000 hospital days increased from 9.0 to 12.5, because more such events were identified after EHR implementation that would otherwise have gone unnoticed
• laboratory tests per week per hospitalization decreased from 13.9 to 11.4
The Commonwealth Fund Using Electronic Health Records to Improve Quality and Efficiency
Geisinger Wyoming Valley Hospital
Discharge Navigator program brings together key information needed to be discussed at team meetings.
A red/green light system indicates which providers have signed off on patient discharges.
They expect this tool to improve efficiency.
The Commonwealth Fund Using Electronic Health Records to Improve Quality and Efficiency
Chapter 10
The wizard leaves
without Dorothy…
Living in Oz
The Magic Wand
• Become “tech savvy” (Know What’s over the Rainbow)
• Learn from others (Courage, Heart, Brain)
• Be creative (Water on the Witch)
• Team up with IT, HIM, RM (Tin Man, Scarecrow and Lion)
• Be mindful of the potential for error (Wicked Witch)
• Acknowledge and use your SKILLS (Ruby Slippers)
Final Chapter
NAHQ: Standards of Practice
• promote quality efforts as a proactive, not reactive, undertaking
• establish quality as the guiding principle when exploring organizational efforts to control healthcare costs
• act as an agent of change and be effective in the change process, including:
o identifying opportunities to improve,
o resolving problems, and
o evaluating the effectiveness of change
Three things…
• Always watch out for the Wicked Witch of the West
• Embrace the power of your ruby slippers
• Remember that you are truly making a difference
The End
Disclaimer
This presentation is not intended to replace specific legal advice from an attorney; it is an educational program expressing views and opinions using generally acceptable risk management methodology.
Resources
• Electronic Health Record Systems and Intent to Attest to Meaningful Use among Non-federal Acute Care Hospitals in the United States:
2008-2011
• ONC Data Brief ■ No. 1 ■ February 2012
• Pennsylvania Patient Safety Authority
• The New England Journal of Medicine
• Matthew P. Keris The Legal Intelligencer February 14, 2012
• Medical eRisk Considerations for Online Communication
Resources
• The Commonwealth Fund Using Electronic Health Records to Improve Quality and Efficiency: The Experiences of Leading
Hospitals July 2012
• E-HEALTH HAZARDS: PROVIDER LIABILITY AND ELECTRONIC
HEALTH RECORD SYSTEMS Sharona Hoffman† & Andy Podgurski
• Do EHRs Increase Liability? Larry Ozeran, M.D. And Mark R. Anderson, FHIMSS, CPHIMS
• Electronic Discovery and Record Production Sandra Nunn, MA, RHIA,
CHP
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