NEJM: Medical Malpractice Liability in the Age of Electronic Health Records

As I wrote on Nov. 11 at Report of an AMIA special task force on challenges in ethics, safety, best practices, and oversight regarding HIT :

This report may be part of a trend ... It appears that the views on healthcare IT safety, ethics, management practices, etc. appearing on the Healthcare Renewal blog and on my once-controversial academic health IT website "Contemporary Issues in Medical Informatics: Common Examples of Healthcare Information Technology Difficulties" (started in 1999) are now becoming mainstream.

Notable "events" continue to occur rapidly in the literature on clinical IT. Another example of the trend I noted appeared today, this time in the New England Journal of Medicine:

Medical Malpractice Liability in the Age of Electronic Health Records
Sandeep S. Mangalmurti, M.D., J.D., Lindsey Murtagh, J.D., M.P.H., and Michelle M. Mello, J.D., Ph.D.
N Engl J Med 2010; 363:2060-2067 (Nov. 18, 2010)

From the Department of Medicine, New York University Medical Center, New York (S.S.M.); and the Department of Health Policy and Management, Harvard School of Public Health, Boston (L.M., M.M.M.).

The above hyperlink takes you, as of this writing, to full text and an available PDF.

My comments on this article are that:

I am happy to see it appear -- as it shows that critical thinking about HIT has reached the top echelons of the medical literature.

However, the new paper itself appears to wander a bit, and seems to add little to the much more comprehensive article:

"E-Health Hazards: Provider Liability and Electronic Health Record Systems." Sharona Hoffman and Andy Podgurski. Berkeley Technology Law Journal (2010).
Available at: http://www.btlj.org/data/articles/24_4/1523_Hoffman.pdf

(Sharona Hoffman JD is Professor of Law and Bioethics, Co-Director of Law-Medicine Center, Case Western Reserve University School of Law, and Andy Podgurski PhD is Professor of Electrical Engineering and Computer Science, Case Western Reserve University.)

The new article does reference the Hoffman/Posgurski article once at [32].

The new NEJM article also seems to display biases. For instance, it states:

EHR users overwhelmingly report improvement in the quality of care they provide. [29]

Reference [29] is this article:

29. DesRoches CM, Campbell EG, Rao SR, et al. Electronic health records in ambulatory care — a national survey of physicians. N Engl J Med 2008;359:50-60.

From that article:

In late 2007 and early 2008, we conducted a national survey of 2758 [ambulatory care] physicians, which represented a response rate of 62%. Using a definition for electronic health records that was based on expert consensus, we determined the proportion of physicians who were using such records in an office setting and the relationship between adoption and the characteristics of individual physicians and their practices.

... Four percent of physicians reported having an extensive, fully functional electronic records system, and 13% reported having a basic system ... Physicians reported positive effects of these systems on several dimensions of quality of care and high levels of satisfaction ... Physicians who use electronic health records believe such systems improve the quality of care and are generally satisfied with the systems. However, as of early 2008, electronic systems had been adopted by only a small minority of U.S. physicians, who may differ from later adopters of these systems.

I would therefore relate that the blanket statement that "EHR users overwhelmingly report improvement in the quality of care they provide" is overstated.

It might have been more appropriate to write that:

"In one study of ambulatory care physicians, a minority of which at present were using EMR's at various levels of sophistication, users reported improved care."

Also, other literature refuting the premise that physicians report improved care could (should) have been considered, such as (in just one example) the 2008 survey reported upon by the American Association of Physicians and Surgeons (AAPS):

PHYSICIAN ATTITUDES & ADOPTION OF HEALTH INFORMATION TECHNOLOGY (PDF)

I wrote about that survey at this link. (I note that the AAPS is a conservative group; NYU and Harvard tend strongly towards the left; one wonders if the NEJM authors would have considered mentioning the AAPS survey, even if they did know of it.)

More potential biases appear in the conclusion of the new NEJM paper:

... In evaluating whether to invest in EHR technologies, provider organizations must weigh the substantial up-front cost and possible risks against the potentially sizeable, but uncertain, long-run benefits.[55]

[55] DesRoches CM, Campbell EG, Vogeli C, et al. "Electronic health records’ limited successes suggest more targeted uses." Health Aff (Millwood) 2010;29:639-46.

From [55]:

... We examined electronic health record adoption in U.S. hospitals and the relationship to quality and efficiency. Across a large number of metrics examined, the relationships were modest at best and generally lacked statistical or clinical significance. However, the presence of clinical decision support was associated with small quality gains. Our findings suggest that to drive substantial gains in quality and efficiency, simply adopting electronic health records is likely to be insufficient. Instead, policies are needed that encourage the use of electronic health records in ways that will lead to improvements in care.

Using [55] as an example of "potentially sizable but uncertain long-run benefits" is not how I would have interpreted the Health Affairs Millwood article.

The NEJM paper authors then write in their conclusion:

... The malpractice implications of EHRs should be included in future discussions of risks and benefits. [Agreed - ed.] Although there is currently little research quantifying the risks and benefits with respect to liability, we are optimistic that they will ultimately weigh in favor of the implementation of EHRs.

They do not state how or why they are optimistic, nor provide corroborating references for that opinion.

Is it revealing of bias and probably not a good practice, as far as I am concerned, to put what appears as wishful thinking -- especially where one states that there is little research supporting the optimism -- in the conclusion of a scientific paper.

In summary, while I feel the paper has a number of flaws, I am glad to see the topic of potential healthcare IT malpractice liability addressed in one of the top journals in medicine.

-- SS