Showing posts with label healthcare IT litigation. Show all posts
Showing posts with label healthcare IT litigation. Show all posts

Wednesday, July 13, 2016

Two recent stories of EHR un-exceptionalism, and a connection to prior HC Renewal posts including my own experiences

The following stories recently appeared in the press about the "un-exceptionalism" (or, I might more accurately state, the negative exceptionalism) of today's EHR technology.

Regarding each organization mentioned, I have had personal experience that, in retrospect, aligns with views I expressed about the organizations years ago.

First:

EHR safety goes to court
By Lisa Schencker
June 25, 2016
http://www.modernhealthcare.com/article/20160625/MAGAZINE/306259982

One patient's blood pressure plummeted dangerously after he was allegedly discharged with the wrong medications. In another instance, a physician couldn't place a pharmacy order for a newborn to receive vitamin K, which is given to babies to prevent serious bleeding.

On several other occasions, patients weren't accurately tracked, creating potential problems getting drugs to them.

Each of these alleged mishaps occurred at PinnacleHealth, a three-hospital system based in Harrisburg, Pa. PinnacleHealth blames each of the mishaps on its electronic health records vendor, Siemens; Cerner Corp. purchased Siemens' health IT business in February 2015.

The relationship between healthcare system and vendor devolved into this dueling lawsuit:

The incidents came to light as part of a breach-of-contract lawsuit Cerner filed against PinnacleHealth last year after the system, which had used Siemens as a vendor for 20 years, sharply curtailed its relationship and entered into a contract with a competing EHR vendor, Epic Systems Corp. PinnacleHealth related the incidents in its counterclaim; the counterclaim was filed in March of this year in state court in Pennsylvania, where it is seeking damages for Cerner's alleged fraud and breach of contract.

(I am cited in the article with respect to hold harmless clause-related issues not relevant to this blog posting.)

Cerner Corp. purchased Siemens' HIT business in Feb. 2015.  Prior to that, Siemens was an independent vendor of an EHR suite known as Soarian, deployed at PinnacleHealth as early as 2008.

See for instance http://news.usa.siemens.biz/press-release/customer-solutions/soarian-plan-care-assists-clinicians-developing-and-deploying-goal-

Soarian Plan of Care Assists Clinicians in Developing and Deploying Goal-Oriented Plans of Care
Monday, February 25, 2008

Siemens (http://www.usa.siemens.com/healthcareit) today announced that PinnacleHealth, a 750-bed, non-profit hospital and healthcare system serving Central Pennsylvania, and CentraState Healthcare System, a 272-bed, non-profit medical facility located in Freehold, N.J., have each signed on to serve as beta sites for Soarian® Plan of Care, a solution designed to support inter-disciplinary care teams in defining and helping to manage patient problems, interventions and expected outcomes, to provide care in order to achieve desired outcomes and to generate new knowledge at the point of care.

Notwithstanding my warnings on this blog and elsewhere that hospitals should NEVER be "beta testing sites" for experimental HIT software used on live patients without informed consent, that the relationship devolved to dueling lawsuits involving safety is not a surprise to me.

Relating to my own experiences as posted previously on this blog:

On August 20, 2009 I posted "Why Siemens Healthcare Fails" (http://hcrenewal.blogspot.com/2009/08/why-siemens-healthcare-fails.html).  In that post I noted regarding a job posting by Siemens for a "physician consultant" on HIT implementation:

... This [Siemens] job description might better be described as "glorified salesperson." It might be a good exit route for a "techie doc" (usually, someone who knows just enough about HIT to be destructive) who hates the current practice environment. It might also be good for managers who don't want knowledgeable experts pointing out their bad decisions and mismanagement, but I think a global company like Siemens should be setting its sights higher in such a crucial area as electronic medical records and clinical IT consultants.

I would not want such a physician advising or supporting complex HIT projects at my organization.

I also recalled my own Siemens face time:

... I spent time at Siemens Healthcare headquarters in Erlangen in 2000, and was offered gracious hospitality and a position overseeing the Soarian cardiology suite [as a result of my work in development of an extensive cardiology information system as CMIO at Christiana Care in Delaware from 1996-8]. The people I met in Erlangen then seemed extremely competent and informatics-savvy, but I turned the offer down through no fault of Siemens. I'd received a near-simultaneous offer (FAXed to my hotel in Erlangen, in fact) from pharma that involved a much stronger management role.

I understand through conversations over the past few years with current and ex-Siemens personnel that most of the Siemens personnel I'd met in Germany in 2000 are no longer with the company. I was told they'd performed suboptimally after the acquisition/merger with Shared Medical Systems (SMS) in Malvern, PA. (I do not find that credible, and would find it far easier to accept that the problems were on the American side, but that is a personal opinion.)

I'd informed my German hosts in 2000 that they'd better be very, very careful about acquisition of an American HIT company due to my experiences with a number of such companies, which I found highly political and highly ignorant of EHR quality issues.

Then, in my Feb. 2016 post "Plaintiff's Lawyers Are The Cause of EHR Problems?" (http://hcrenewal.blogspot.com/2016/02/himss-2016-presentation-plaintiffs.html) I recounted further experience with Siemens:

... an anecdote regarding the health IT Industry in the U.S.: the cardiology information system I developed, linked to above in the 2nd bullet point, was seen in 2000 by German engineers at Siemens Healthcare Erlangen as exemplary, and they offered me a position to further develop it, that I declined due to a simultaneous superior offer from Merck Research Labs.  However, in 2007 when I again spoke to Siemens, this time to Americans at the former Shared Medical Systems in Malvern, PA that had been acquired by Siemens, they found a system that actually produced clear, detailed outputs in a critical care area and was in use at the time in a major healthcare system in the region "impractical" - and never followed up with me.  Pearls before....)

 Finally, Siemens seems to have ignored a well-qualified informatics internal expert on explicit EHR safety warnings, as in my Feb. 8, 2010 post "A Lawsuit Over Healthcare IT Whistleblowing and Wrongful Discharge: Malin v. Siemens Healthcare" (http://hcrenewal.blogspot.com/2010/02/lawsuit-over-health-it-whistleblowing.html):

  • Siemens Medical's physician internal consultants (skilled anesthesiologists/informatics specialists), apparently in writing and including a remediation plan, opined that an IT system developed for critical care had numerous severe flaws, of sufficient seriousness that in their opinion the systems could harm or even kill patients if deployed;
  • These were warnings of defects and flaws in IT in the worst possible medical environment, critical care with the sickest and most vulnerable of patients, not some ambulatory clinic or primary care office;
  • Allegations were raised that the warnings were ignored, with at least one of the physicians, Dr. Malin, who was strongly concerned and vocal about the risks then being told his position was being eliminated. [It is not a surprise to note this rings alarm bells about the possibility of wrongful discharge based on retaliation and/or "greasing the skids" to eliminate potential whistleblowers or "non-team players" who could delay release of the software and affect revenue - ed.];
  • The company possibly ignored the remediation plans of their own clinician/informatics experts;
  • There were allegations of company misrepresentations about the new system to the FDA;
  • There were allegations of decision making on these issues by non-clinician IT managers lacking healthcare or healthcare informatics expertise.
  • A wrongful discharge complaint and then lawsuit were filed by Dr. Malin on the basis of violation of the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A ("Civil action to protect against retaliation in fraud cases - Whistleblower Protection for Employees of Publicly Traded Companies");
  • The suit was dismissed on the apparent technicality that Siemens Medical in the U.S. is not subject to the provision in the SOX Act as is the publicly-traded corporate parent, Siemens AG; from document #4, pg 15:
... Health Services is a wholly-owned subsidiary of Siemens Med ... Siemens Med is a wholly-owned subsidiary of Siemens Corporation, which is indirectly owned, through two intervening layers, by Siemens AG, a German company that is publicly traded as defined by § 1514A of SOX ... Of these entities, only Siemens AG is a publicly-traded company. While both Health Services and Siemens Med are incorporated in Delaware and located in Malvern, Pennsylvania, they are separately incorporated entities.
  • Siemens Medical in their response to the suit denied the most severe allegations regarding the IT defects, but this issue was not followed up upon due to the lawsuit's dismissal on SOX issues despite the obvious potential public hazards the allegations of IT defects could represent;
  • In fact a US District Judge in the case, Peter J. Messitte, in the period after allowing Malin to prove the validity of SOX towards his case, opined that "No other discovery will be permitted, including but not limited to the alleged safety problems of Defendants’ product", document 4 above, Judge Messitte opinion, US District Court Maryland, pg. 25. [While perhaps understandable from a legal perspective, injured or dead patients don't really care about what legal precedents got them into the injured or dead state - ed.]
  • Siemens Medical admitted in their responses to the suit that some of the software in question, actually put in use in hospitals, was in fact "beta" software, i.e., experimental (per Item 38 in 'Siemens Answer to Complaint' document).

There's that "beta-software" issue again.

So, the acquirer (Cerner) of a product of an American Siemens HIT subsidiary that appeared to have what I consider defective HIT talent management practices (as exemplified by the aforementioned JD); bizarre views about successful, high-quality EHR software (seen by their German counterparts a few years prior as exceptional); and that appears to have not been very happy about its own employee warning explicitly of beta ICU software being so bad it could kill patients is now embroiled in litigation regarding safety by a former customer.

None of this is surprising to me at all.  Incompetence can only go so far in healthcare before things blow up.

An unanswered question, of course, is whether patients were harmed or killed as a result of Siemens software, including its beta tests on unsuspecting patients.

---------------------------------

Here is a second story of EHR un-exceptionalism with a personal twist, this article in the Journal of the American Medical Informatics Association (JAMIA):
Comparison of accuracy of physical examination findings in initial progress notes between paper charts and a newly implemented electronic health record, June 28, 2016
http://jamia.oxfordjournals.org/content/early/2016/06/28/jamia.ocw067

Introduction There have been several concerns about the quality of documentation in electronic health records (EHRs) when compared to paper charts. This study compares the accuracy of physical examination findings documentation between the two in initial progress notes.

Methodology Initial progress notes from patients with 5 specific diagnoses with invariable physical findings admitted to Beaumont Hospital, Royal Oak [Michigan, near Detroit -ed.], between August 2011 and July 2013 were randomly selected for this study. A total of 500 progress notes were retrospectively reviewed. The paper chart arm consisted of progress notes completed prior to the transition to an EHR on July 1, 2012. The remaining charts were placed in the EHR arm. The primary endpoints were accuracy, inaccuracy, and omission of information. Secondary endpoints were time of initiation of progress note, word count, number of systems documented, and accuracy based on level of training.

Results The rate of inaccurate documentation was significantly higher in the EHRs compared to the paper charts (24.4% vs 4.4%). However, expected physical examination findings were more likely to be omitted in the paper notes compared to EHRs (41.2% vs 17.6%). Resident physicians had a smaller number of inaccuracies (5.3% vs 17.3%) and omissions (16.8% vs 33.9%) compared to attending physicians.

Conclusions During the initial phase of implementation of an EHR, inaccuracies were more common in progress notes in the EHR compared to the paper charts. Residents had a lower rate of inaccuracies and omissions compared to attending physicians. Further research is needed to identify training methods and incentives that can reduce inaccuracies in EHRs during initial implementation.

Apparently not covered in the article was the issue of patient harms that might have occurred (and could still occur) due to the "significantly higher rate of inaccurate documentation" in the EHR.   

"Beaumont Hospital" caught my eye, as I had interviewed for the CMIO role there in 2007 or early 2008.  My experiences are memorialized in an anonymized post at my Drexel informatics site which I reproduce in part here (the full essay is at http://cci.drexel.edu/faculty/ssilverstein/cases/?loc=cases&sloc=an_expert_says):
Sure, the experts think you shouldn't ride a bicycle into the eye of a hurricane, but we have our own theory

A medical informaticist who formerly held a “Director of Informatics” role a number of years ago in a very large hospital system, and who left the role due to a toxic management environment and lack of authority commensurate with responsibility, was seeking applied Chief Medical Informatics Officer (CMIO) positions once again.  ... He makes the following observations after completing two full rounds of interviews at a prestigious hospital system similar in size to his erstwhile employer, in a very competitive environment, that recently experienced a decline in its clinical quality stats. The organization feels the quality stats themselves were inaccurate, in part due to lack of good healthcare IT.

From what the informaticist was able to gather, their leadership was displeased. Board members were seasoned executives from a heavy-manufacturing industry that is extremely dependent on information technology and concurrent supply chain data. These executives apparently recommended that the organization move quickly on implementing EHRs.

The organization is thus planning to implement EHRs for thousands of physicians, most of whom are not employed by the hospital but are independent private practitioners, and likely to be skeptical or concerned about time impact and “grading” that could affect their livelihoods.  The hospital leaders also wanted to create integrated systems drawing on EHR data to automate quality reporting to regulatory agencies, as well as to support ongoing, funded clinical drug and device trials.

The informaticist was interviewed by the usual mix of clinician eager adopters, clinician skeptics, knowledgeable executives, skeptical executives who knew little about clinical IT, IT personnel who seemed overconfident given the enormity of the tasks at hand, and those who were clearly frightened by the prospect of being held accountable for a project of this magnitude. In the end, the informaticist did not get the position due to the organizational leaders being adamant the incumbent CMIO needed to also practice medicine.  The informaticist had explained on the first round that he believed a leadership role in a project of such magnitude and challenge called for the highest levels of executive presence and freedom from distraction, thus he did not intend to practice medicine (he had not practiced in his former Director of Informatics role for the same reasons).

He’d thought this issue had been settled after the first round of interviews, leading to the invitation for round two. This line of questioning was revisited, however, in round two in a group interview setting. The group interview was attended by a number of people with whom he’d already discussed this issue via individual meetings in round one. This suggested his time was being wasted and was rather annoying, especially considering that the informaticist had flown cross-country not once but twice to an organization not in consensus about a very basic hiring requirement
... It is not as if the organization had a doctor shortage, or that such a role would have ample free time where the incumbent would be idly sitting at their desk unless this time was absorbed seeing patients in the clinic. 

The stated reason for the organization’s wanting the CMIO to practice medicine was “to have credibility with the doctors.”  The informaticist explained that he’d found this not to be the case, that physicians being put “under the gun” of using EHR’s were generally more concerned that the CMIO had the executive authority to best represent their interests and understood medicine from training and practice at some point, not necessarily concurrently with the CMIO role.  Interestingly, there is no empirical research on this point, so the issue was the informaticist’s experience vs. the hospital’s ‘second-guessing’ a seasoned expert.

Ironically, the informaticist was told during his interviews that a CMIO they'd hired a few years ago had left, in part due to being overextended.  He was also told that some of the clinical IT problems he'd solved as a CMIO in the past Director of Informatics position were problems this organization had not been able to solve during the same time frame.

... Regarding underestimation, this organization appeared to have little idea of the difficulties they were getting into

... The informaticist had observed another indication that this organization ‘didn't know what they didn't know.’  He was informed that the organization had selected their EHR vendor prior to seeking a medical informatics expert. This implies they really did not understand what a medical informatics specialist does and can do, which is far more than being a tactical "EHR implementation assistant." ... The informaticist had been there, and had done that in his past role. He found it unrewarding then and actually had decided not to take the risk again, rejecting the new position, even before the organization decided they wanted an (effectively) part-time CMIO who also saw patients.

It was clear this organization, who the informaticist tried to “take to school” based on hard-earned expertise and extensive references on social issues in health informatics (e.g. on this website), felt they were the experts on what was best regarding CMIO background.   This may have been a dysfunctionality satirist Scott Adams once described like this:

Ignoring the Advice of Experts Without Good Reason
Example: Sure, the experts think you shouldn't ride a bicycle into the eye of a hurricane, but I have my own theory.

As I recall, an informatics physician much younger than I and with less experience was hired.  I do not know his fate.  However, I believe that my expertise at that time in EHR issues, and my no-nonsense stance on EHR safety and excellent management, might have averted or minimized the "inaccuracy" problems.

Therefore, it is also no surprise to me that the organization now relates the EHRs were causing significant charting inaccuracies.  It would also not surprise me if close calls and harm occurred. They apparently rode their bicycle into that hurricane, and doing so will usually produce a less than optimal outcome.

In summary, two recent articles on EHR-related lawsuits and operational problems, in my own personal experience, have potentially relevant "backstories" that may help provide context.  Those backstories relate primarily to what I've called "HIT amateurism" (e.g., faulty expertise evaluation) as well as HIT mismanagement (e.g., ignoring explicit internal warnings of dangers.)  I believe my experiences, and that of other such as Dr. Malin, are symptomatic of widespread health IT industry dysfunction.

I also believe that if this industry is ever to learn from its mistakes, it will only occur in the courtroom.  Being that the defense side is usually fierce, however, I am not sanguine needed learning will occur any time in the near future.

-- SS

Wednesday, May 06, 2015

Politico: Electronic record errors growing issue in lawsuits

The indefatigable Arthur Allen of Politico.com has authored a nice piece on the issue of EHRs being a cause of medical malpractice, with resultant litigation.  I was a contributor:

Electronic record errors growing issue in lawsuits
By Arthur Allen
5/4/15 6:40 AM EDT
http://www.politico.com/story/2015/05/electronic-record-errors-growing-issue-in-lawsuits-117591.html

Medical errors that can be traced to the automation of the U.S. health care system are increasingly an issue in medical malpractice lawsuits.

Some of the doctors, attorneys and health IT experts involved in the litigation fear that safety and data integrity problems could undercut the benefits of electronic health records unless HHS and Congress address them aggressively.

I already believe the benefits of EHR technology have been severely undercut - if not destroyed - by the unbelievably poor quality, user experience and incompetent implementations presented by most commercial health IT software today.

I even have a late mother to offer as evidence, due to an ED EHR's lack of fundamental and crucial confirmation dialogs and notification messages to team members.  These computer science-101 level deficiencies permitted a triage nurse's failure to successfully click a heart medication for continuation to propagate through several days of ICU/floor hospitalization unnoticed.  Gross overconfidence in computer output and cavalier attitudes in the ICU about med reconciliation sealed the deal, where, recognizing something seemed amiss with the meds list vs. the history of arrhythmia, the ICU doctor did nothing except leave a question in the chart about it, resulting in catastrophe.

“This is kind of like the car industry in Detroit in 1965,” says physician Michael Victoroff, a liability expert and a critic of the federal program encouraging providers to adopt EHRs. “We’re making gigantic, horrendous, unsafe machines with no seat belts, and they are selling like hot cakes. But there’s no Ralph Nader saying, ‘Really?’”

There are, actually, but an "Unsafe at any MHz" has not yet been written and taken seriously by the public about EHRs.  The industry has been too in control of the narrative for that to happen.

According to a review by The Doctors Company, the largest physician-owned U.S. medical malpractice insurer, EHR issues were involved in only 1 percent of a sample of lawsuits concluded from 2007 through 2013. But that finding could be deceptive since it takes five or six years to close a suit, and during that period the numbers of such cases grew rapidly as electronic health records become more pervasive in hospitals and physician offices. The pace of these cases doubled from 2013 to early 2014.

At the linked report at http://www.thedoctors.com/KnowledgeCenter/Publications/TheDoctorsAdvocate/CON_ID_006908 the med mal insurer "The Doctor's Company" noted:

... Shortly after electronic health records (EHRs) began to be widely adopted, The Doctors Company and other medical professional liability insurers became aware of their potential liability risks. We anticipated that EHRs would become a contributing factor in medical liability claims. Due to the three- to four-year lag time between an adverse event and a claim being filed, however, EHR-related claims have only recently begun to appear. In 2013, we began coding closed claims using 15 EHR contributing factor codes (eight for system factors and seven for user factors) developed by CRICO Strategies for its Comprehensive Risk Intelligence Tool (CRIT).

In 2013, The Doctors Company closed 28 claims in which the EHR was a contributing factor, and we closed another 26 claims in the first two quarters of 2014. During a pilot study to evaluate CRICO’s EHR codes, 43 additional claims closed by The Doctors Company were identified (22 from 2012, 19 from 2011, and 2 from 2007–2010).

What is not stated is the fact that many EHR-related harms are not recognized as such; many injured patients do not sue, and many who want to cannot do so due to the expense and time involved for plaintiff's attorneys (I have heard the figure that perhaps 5% do make it to suit).  Along with the time lag noted, these figures are another Red Flag, as are the ECRI Deep Dive harm figures, representing what is likely just the "tip of the iceberg."

(See "Peering Underneath the Iceberg's Water Level" at  http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html and "FDA on Health IT Adverse Consequences: 44 Reported Injuries And 6 Deaths, Probably Just 'Tip of Iceberg'" at http://hcrenewal.blogspot.com/2010/02/fda-on-health-it-adverse-consequences.html).

Back to Politico:

The lawsuits allege a broad range of mistakes and information gaps — typos that lead to medication errors; voice-recognition software that drops key words; doctors’ reliance on old or incorrect records; and nurses’ misinterpretation of drop-down menus, with errors inserted as a result in reports on patient status.

In addition, discrepancies between what doctors and nurses see on their computer screens and the printouts of electronic records that plaintiffs bring to court are leading some judges and juries to discredit provider testimony and hand out big awards. In one case, a patient in septic shock had suffered gangrene and a severe skin rash, but computer records read “skin normal.” They also showed repeated physician interviews with the patient — when she was comatose.

I can verify both of these issues personally, from my legal work - not to mention outright electronic record tampering.

... While the percentage of EHR-related cases is still low, “this is going to become a bigger and bigger issue,” said David Troxel, medical director of The Doctors Company. “I get more calls from frustrated, angry doctors about their EHRs than any other subject.”

Doctors may be following my advice (see end of my post at http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html) where I wrote:

... When a physician or other clinician observes health IT problems, defects, malfunctions, mission hostility (e.g., poor user interfaces), significant downtimes, lost data, erroneous data, misidentified data, and so forth ... and most certainly, patient 'close calls' or actual injuries ... they should (anonymously if necessary if in a hostile management setting):

(DISCLAIMER:  I am not responsible for any adverse outcomes if any organizational policies or existing laws are broken in doing any of the following.)

  • ... Inform their personal and organizational insurance carriers, in writing. Insurance carriers do not enjoy paying out for preventable IT-related medical mistakes. They have begun to become aware of HIT risks. See, for example, the essay on Norcal Mutual Insurance Company's newsletter on HIT risks at this link. (Note - many medical malpractice insurance policies can be interpreted as requiring this reporting, observed occasional guest blogger Dr. Scott Monteith in a comment to me about this post.)
Back to Politico:

The industry “takes very seriously the need to enhance the well-documented ability of EHRs to increase patient safety,” an association spokesperson said. “It also recognizes the importance of looking for opportunities to identify and reduce any potential risks associated with development and use of EHRs. All these efforts are essential to the goal of learning more about the ways in which technology, training and configuration can be rolled out in the safest possible ways.”

This is pure B.S. and spin.  There is no "well-documented ability of EHRs to increase patient safety", just a number of methodologically flawed/biased studies (like this one, http://hcrenewal.blogspot.com/2011/03/benefits-of-health-information.html), a lot of pro-HIT rhetoric, and a lot of harms data that the industry ignored for many years.

The statement also ignores what the domain expert end users - physicians and nurses - themselves are saying, see "Accenture - Fewer U.S. Doctors Believe IT Improves Health Outcomes (April 2015)" at http://www.businesswire.com/news/home/20150413005148/en/Increased-Electronic-Medical-Records-U.S.-Doctors-Improves#.VT5bmpOTqUk.

Why, one should ask as well, should an industry that's been around for decades only now be "learning more about the ways in which technology, training and configuration can be rolled out in the safest possible ways?"  

I see that statement as an industry self-condemnation of years of cavalier IT practice. 

... But providers and health care systems are eventually going to start suing vendors, analysts said, in part because software companies are viewed as having deep pockets. “It’s only a matter of time before a company like athenahealth or Allscripts or Epic or Cerner gets sued,” said Klein.

Plaintiffs’ attorneys are already eyeing such cases, according to Scot Silverstein, a Drexel University health IT expert and internist who is suing a hospital over a lapse in care of his mother that Silverstein claims was caused by poor EHR implementation. Silverstein and two plaintiff’s attorneys met with Rep. Matthew Cartwright (D-Pa.) and other lawmakers in November to plead for more government regulation of EHRs.

I was actually more direct with the author of the article, Mr. Allen.  I said that the sellers of these systems deserved to be sued - that they had earned it through slovenly practices in thought and application enabled by the extraordinary regulatory accommodations afforded to and protected by the industry since its inception (i.e., no regulation) - when system flaws result in patient harm. 

... Some recent studies show that EHRs do make hospitals safer. But the data isn’t conclusive, said William Marella, executive director of the ECRI Institute Patient Safety Organization. Last year, ECRI convened a partnership of EHR vendors, safety experts, academics and medical groups to share and analyze health IT problems ... EHR safety issues are frequently misdiagnosed — and thus under-diagnosed — by providers, according to ECRI’s Marella. “They say, ‘wrong site surgery,’ or ‘drug error,’ which can make it hard to ferret out the cases where IT is responsible.”

It is absurd and disingenuous to speak of 'safety improvements' when the true harms rates are admittedly unknown (see "FDA on health IT risk:  "We don't know the magnitude of the risk, and what we do know is the tip of the iceberg, but health IT is of 'sufficiently low risk' that we don't need to regulate it" (http://hcrenewal.blogspot.com/2014/04/fda-on-health-it-risk-reckless-or.html) for more on that issue.

... In about 200 EHR-related legal cases that the liability firm CRICO analyzed, the glitches rarely led directly to patient harm, said Dana Siegal, the company’s director of patient safety services. But she added, “We’re seeing failures to communicate or providers acting on inaccurate information that was driven in part by an EHR issue.”

This brings up another issue.  Computers don't pull triggers and the mayhem they cause doesn't usually immediately kill people.  My mother, for example, survived the initial EHR-led assault on her life, though her survival required emergency reversal of anticoagulation in the face of critical carotid stenosis that had already caused a TIA, emergency craniotomy (brain surgery), and other risky interventions.  She died a year later of complications of her injuries.  Her case would not be likely to be counted as an "EHR-related death" in any statistics (if it was reported at all).  This "time delay" would likely cause any statistics on EHR-related deaths to be understated on their face.

... While the effect of EHRs on malpractice suits is still modest, many analysts worry about the overall uncertainty concerning information in such systems. Confusing or inaccurate records, if they proliferate, not only cast doubt on a doctor in court but could taint clinical research that draws on these large pools of data.

Bravo to Arthur Allen for pointing out that clinical research that draws on garbage, uncontrolled data will turn out garbage.  See my paper "The Syndrome of Inappropriate Overconfidence in Computing" at http://www.jpands.org/vol14no2/silverstein.pdf for more on that issue where I observed:

... This increasing confidence in EHR data to perform far more complex tasks than postmarketing surveillance of a single drug is of great concern. Prompt detection of adverse drug events (ADEs) from single drugs, using aggregated EHR data, is within the realm of possibility. Detection of relatively more nebulous (i.e., compared to major ADE) “outcomes differences” between two or more drugs or treatments via EHR data—such as, did treatment A lower blood pressure more than drug B, or did drug C lessen depression more than drug D—rises to the level of “grand overconfidence in computing” and perhaps “grand folly.”

To accomplish this task with reasonable scientific certainty from aggregated EHR data originating from different vendor systems, input by myriad people of different backgrounds, with differing interpretations of terminologies (students/residents/attending
MDs/RNs etc), under different pressures and motivators (time limits, cognitive overload from poor HIT user interfaces, reimbursement maximization, and so forth), seems improbable.

What levels of statistical validity could arise from such studies? Could they even approach the level deemed “acceptable” in good science?We do not know, although I suspect a “garbage in, garbage out” (GIGO) phenomenon, leading to studies whose results are more likely related to chance than to solid reality.

Back to Politico:
A recent report by the HHS Office of Inspector General said the department has failed to assure that EHR data are secure and accurate. Many hospitals have unsecured audit trails—meaning that information in the record could be altered without detection, it said.

This ability - to alter records - has been admitted under oath by EHR systems administrators in cases in which I have been an advisor to the Plaintiffs' attorney - and had the questions asked.  Hospitals have possession and control of easily-alterable information (far easier than paper) that is the only evidence of potential misadventures - a major conflict of interest.

... “There’s really no one with a vested interest in the integrity of the record besides you, the patient,” said Reed Gelzer, a physician and health IT expert.

Yes, but getting it can cost thousands of dollars.  I paid about one thousand dollars for a few reams of printed EHRs, and this is not uncommon.

... Concerns led the Institute of Medicine in 2011 to propose the creation of a dedicated IT safety center with the power to investigate EHR risks. ONC has since settled on a center that would have no investigatory power but would provide a safe environment in which real-life problems could be analyzed and solutions developed.

In other words, ONC has settled on a joke, on tension management.

The safety center is a “critical priority right now for ensuring the transformation from a world of paper to a world of electronics and connectedness,” said Patricia McGaffigan, COO and a senior vice president at the National Patient Safety Foundation.

Yes, a powerless, industry-friendly "safety center" is a priority for good reason.  Not to sound mean-spirited, but if the wife, child, parent of one of the proponents of a milquetoast "Safety Center" suffers EHR-related injury and dies a painful and lingering death as a result, the proponent will get little sympathy from me.   They've certainly tempted the Gods.

I will leave the final word to physician Michael Victoroff:

“The vendors are very right that if they had true product liability they wouldn’t make these things,” he said.

To which I say to the Information Technology vendors, if you can't take the heat (of accountability in medicine), then get the hell out of our medical kitchen.

-- SS

Sunday, February 12, 2012

Those Goddamn Plaintiff's Trial Lawyers Are to Blame for EHRs That 'Tattle' on Doctors - And Harm Patients

It seems the EHR technophiles are starting to notice one of the side effects of EHR technology: the liabilities EHRs impose on users.

Interestingly, those liabilities are presented below as the fault not of a cavalier industry receiving extraordinary governmental and regulatory accommodation compared to other healthcare sectors that, among other issues, have allowed it to (see hyperlinks for more information):


Instead, the liabilities are presented as the fault of plaintiff trial lawyers, who need to be disempowered through yet another special accommodation for health IT.

My comments are interspersed in [red italics]:


Feb. 8, 2012
The Wall Street Journal
MarketWatch
Healthcare IT Expert Exposes Hidden Risks of Lawsuits Due to Electronic Health Record

Spokesperson Says Electronic Health Records May Give Crippling Access to Physician's Actions and Increase the Need for Defensive Medicine

[Crippling access to physician's actions? That is an odd combination of terms - ed.]

DELRAY BEACH, Fla., Feb 8, 2012 (GlobeNewswire via COMTEX) -- Since the American Recovery and Reinvestment Act (ARRA) passed in February 2009 and caused a digital tsunami in the healthcare industry, physicians have been scrambling to comply with the requirement to switch to electronic health record systems. (EHRs) While many in the healthcare industry laud the use of EHRs to improve quality of care and analyzing patient outcomes, Dr. Sam Bierstock, founder of Champions In Healthcare, points out significant concerns regarding increased vulnerability to medical legal claims that may result from the use of EHRs without major tort reform that would relieve physicians of an onslaught of malpractice suits.

"EHRs unquestionably have the potential to improve patient safety and the quality of care delivered, but what few people realize is that using an EHR exposes physicians to an Orwellian level of analysis of every single act while doing their job," said Bierstock, who has advocated and pioneered the use and benefits of EHRs for more than 30 years." EHRs, however, can also be audited to examine how long it took them to act after an abnormal lab result came in, if the doctor checked on on-line references before making a clinical decision, what was said in every email and how long the doctor took to respond, and even how long the doctor looked at a screen or scrolled down to read an entire document.

[Why, exactly, this is a bad thing, I do not understand; it seems hypocritical. After all, any data collected that can help improve healthcare has been deemed golden - up to now - ed.]

Physicians are exposing themselves to an unacceptable level of scrutiny and analysis of their use of computers that may serve to encourage malpractice suits.

["Unacceptable level of scrutiny" is largely a code phrase for
audit trails and other 'metadata', i.e., automatically generated computer data that shows who accessed or modified a document or other data, when, from where, etc. I ask - access to this data is unacceptable to whom? Injured patients? - ed.]

Meaningful tort reform is essential to getting the maximal benefit from these wonderful systems.

[Wonderful systems, when even the IOM admits we don't know the level of harm they cause, the NIST indicates they are poorly usable, and so forth
as here? - ed.]

According to Bierstock, the problem runs even deeper because during his career as an industry consultant with Champions in Healthcare, and as a speaker at healthcare events he has noticed that the vast majority of physicians are still not aware of the complex requirements imposed upon them by the Health Information Technology for Economic and Clinical Health (HITECH) Act even though it has been a law for more than two years.

[I agree with the statement "imposed upon them", but this imposition was largely at the hands of the HIT pundits, the 'Ddulites'
(technophiles who ignore technology's downsides, the opposite of 'Luddites', link), and various species of non-medical profiteers - ed.]

"I talk to many physicians who have no idea they can suffer financial, civil and even criminal penalties (i.e. jail) for non-compliance.," said Bierstock. "I have been asked to speak about this topic many times, but beyond HITECH, it's my opinion that similarly, doctors and hospitals don't yet fully realize their medical legal vulnerability associated with the use of EHRs.

[They will learn, fast, with Medical Informatics specialists such as myself on patients' side instead of on the side of the health IT industry - ed.]

This will be the case until there is major tort reform, which has unfortunately been thwarted by the influence of American Trial Attorneys and their associations."

[You see, it's all the fault of the evil Plaintiff's Bar - ed.]

Bierstock noted that in an effort to stimulate physicians and hospitals to install and use EHRs, The American Reinvestment and Recovery Act of 2009 also authorized the Centers for Medicare and Medicaid Services (CMS) to issue guidelines which define what is "Meaningful Use" of an EHR - guidelines which must be met in order for hospitals and doctors to receive financial incentive payments for using EHRs, or be penalized by having Medicare or Medicaid payments reduced for failure to meet the guidelines.

[Unfortunately, they did not formulate guidelines for safety. Thus, as Sharona Hoffman, JD notes in MEANINGFUL USE AND CERTIFICATION OF HEALTH INFORMATION TECHNOLOGY: WHAT ABOUT SAFETY?, "General system safety is a property that is attainable only through rigorous processes for development and evaluation. However, the regulations do not address certification of EHR vendors’ software development processes or even require vendors to analyze and mitigate potential safety hazards. Furthermore, ATCBs will use testing requirements developed by the National Institute of Standards and Technology (NIST) that are apparently intended only to determine whether systems include certain features. Passing such tests is not sufficient to ensure that those features function properly in the long term and under varied operating conditions." - ed.]

Bierstock believes that if physicians are expected to embrace EHRS, they should be allowed to do so in a manner that maximizes the benefits of these systems to the delivery of care and to the benefit of their patients without worrying about giving unlimited ammunition to trial lawyers.

[Perhaps the EHR pundits should have foreseen this eventuality before pushing the current administration to mandate national EHR rollout. It didn't take a rocket scientist to do so - ed.]

"Quite simply, physicians may be in a situation that leaves them vulnerable to litigation and threatens loss of their professional standing and personal assets -- all because an external evaluator [e.g., a trial lawyer, judge or jury -ed.] may not think the physician lived up to arguable standards in the digital age," said Bierstock. "Overall, EHRs are the litigator's proverbial golden goose. They are to malpractice attorneys what the electron microscope is to microbiology."

[In other words, EHRs deserve yet another special accommodation, this time regarding legal Discovery, in addition to the many other special accommodations this industry has received. In fact, EHRs make available only that which they are designed to, and discoverability of that information is a Federal matter under the Federal Rules of Civil Procedure (FRCP) governing e-discovery - "On December 1, 2006 the Federal Rules of Civil Procedure were revised to address numerous e-discovery issues. Rules 16,26,33,34,37 and 45 require attorneys to pay specific attention to electronic discovery issues. E-Discovery practices and strategies need to be reviewed and aligned with the updated rules to ensure compliance." - ed.]

I find requests for additional special accommodations for EHR's over other medical devices and IT in other industries (e.g., airplane black boxes and cockpit recorders that monitor the every move of pilots) to be illustrative of the concept "be careful, you may get what you wish for."

That plaintiff trial lawyers are blamed for quite properly using the Federal Rules of Civil Procedure to assure justice for victims of medical malpractice, including EHR-related medical malpractice, is outrageous.

It seems the pundits might be starting to panic, after realizing the "data utopia" that is going to "revolutionize medicine" has a downside.

-- S. Silverstein, MD

Feb. 14, 2012 Addendum:

It seems the clinical data itself generated by today's health IT - garnered while putting patients at risk and costing many billions of dollars - might not be anywhere near as trustworthy as advertised by the technophiles.

See "It Seems We Are Not The Only Ones Bumping Up Against EHR Data Quality Issues. PCEHR Implications Are Worth Considering" at the Australian Health Information Technology blog by
... If ever there was an example of “garbage in, garbage out” in operation this has to be it. There has to be a great deal of care taken as we move from the most simplest data sharing to more complex efforts.

Saturday, September 24, 2011

UPMC and the Sweet death that wasn't very sweet: How EMRs can detract from a clear narrative, and facilitate spoliation and obfuscation of evidence

The world of electronic medical records is very secretive.

Vendors will not allow their programs or data structures to be examined, even by the academic community. Their products, medical devices, are not vetted by regulatory agencies such as the FDA for quality.

Patients and clinical personnel are supposed to take the word of the seller that these systems are fit for purpose and of high quality.

A window into the internal working of EMR's was initiated Down Under just this year, in the form of a detailed internal analysis of an ED EMR product from America slated for roll-out in public hospitals in one of Australia's most populous states. Dr. Jon Patrick of the University of Sydney performed this work. He was not happy with what he found, in terms of software engineering, human computer interaction, and other issues related to fitness for purpose. See here and here.

(For more on healthcare IT difficulties, see "Contemporary Issues in Medical Informatics: Common Examples of Healthcare Information Technology Difficulties" at this link: http://www.ischool.drexel.edu/faculty/ssilverstein/cases/.)

One component of the healthcare IT "ecosystem" many have been unable to see, which is perhaps even more carefully guarded than the program code and data structures, is the metadata on EMR use.

A remarkable development has now changed that metadata secrecy - a public civil lawsuit court docket.

Metadata is "data about data." In this context, that means data about who accessed the EMR, what they did, when they did it, from where they did it, etc. Perhaps it should be deliberately misspelled as "meatdata."

It allows the "legible gibberish" (see my Feb. 2011 post "Electronic Medical Records: Two Weeks, Two Reams" for more on that term) produced by the clinical side of EMR to be better weaved into meat, that is, a medical narrative that is essential to truly understanding a case.

I noted the unfortunate case of Samuel Sweet at the University of Pittsburgh Medical Center (UMPC), as reported by Sean Hamill in the Pittsburgh Post-Gazette:


Trial to begin in wrongful death claim
Monday, September 19, 2011
By Sean D. Hamill, Pittsburgh Post-Gazette

As far as Samuel Sweet was concerned, he only had a headache. It was a bad one, but nothing more, maybe something his chiropractor could fix with a little adjustment.

But three days after being admitted to UPMC Presbyterian for what his family was told was a treatable amount of bleeding on the brain, and six hours after his family saw him laughing and chatting about the Penguins' playoff chances, early in the morning of May 16, 2009, Mr. Sweet died unexpectedly.

Why he died is the subject of a civil case his family filed a few months later ... [Plaintiff's attorney] Ms. Maliver [actually Dr. Maliver, as she holds both the JD and MD degrees - ed.] said UPMC's timeline came into question in early August 2011, when UPMC finally turned over -- after two years of discovery [i.e, they turned them over at the last minute, a few weeks before trial was scheduled to begin - ed.] -- 1,200 pages of "results detail sheets" which show not only when something was written in Mr. Sweet's electronic chart, but who wrote it and how.

[The patient died when there was a delay in treatment due to marked difficulty in putting a breathing tube into his lungs (a difficult intubation) when he developed respiratory failure. The defendants possibly never expected someone to actually comb through the 1,200 pages of "results detail sheets" on such a short time frame, but, apparently, the plaintiff's attorney took on the challenge - ed.]


So, for example, Ms. Maliver alleges that the results detail sheets show that during the 21 minutes before Mr. Sweet was said to stop breathing, none of the information in his chart is straight from the computer monitors that would tell what his vital signs were during that period.

But the results detail sheets also show something more troubling, Ms. Maliver said.

She said she found evidence that three days after Mr. Sweet died, Dr. Richard Simmons, UPMC Presbyterian's head of quality assurance, tried to put a "Diff Intub" [difficult to intubate, due to anatomy - ed.] red-letter warning on Mr. Sweet's electronic medical record. That effort showed up on the results details sheets, according to Ms. Maliver.

Such a warning would tell ["alert" would be a more precise term - ed] anyone who opened the record that Mr. Sweet was difficult to intubate.
As a result of this newspaper story, the defendants filed a complaint with the judge, who ordered a six month delay in further proceedings. The complaint and decision is at this link (PDF).

In further investigating what I considered a remarkable story, I came across a public docket Dr. Maliver filed on behalf of her clients in the case, "PLAINTIFF'S MOTION AND SUPPORTING BRIEF TO AMEND COMPLAINT TO SEEK PUNITIVE DAMAGES".

As I mentioned previously, this is a remarkable development that has opened a window on metadata secrecy.

This is freely and publicly downloadable from the Pittsburgh Prothonotary Office Civil Docket site at this link, case #GD-09-019407 , document #40 of 09/02/2011. (I have also cached the document at this link: http://www.ischool.drexel.edu/faculty/ssilverstein/cases/lawsuits/complaint_punitive_damages_vol101400000177.pdf .)

As I mentioned in the aforementioned post, I found the hospital attorney's explanation of apparent tampering somewhat troubling:

Dr. Simmons wasn't trying to alter the record, [attorney for the defendants] Mr. Conti said; instead he was in Mr. Sweet's medical record as part of the "peer review" process, assessing what happened in Mr. Sweet's case.

As part of that, he was in the medical record three days after Mr. Sweet died trying to figure out how one would create a warning about a patient's difficult intubation [in effect, altering the record, at the very least through creation of a confusing audit trail - ed.], Mr. Conti said.

The public nature of the "PLAINTIFF'S MOTION AND SUPPORTING BRIEF TO AMEND COMPLAINT TO SEEK PUNITIVE DAMAGES" document makes it possible for the public to look at some of the actual metadata to see for themselves what might have occurred.

Again, this is remarkable and is the first time I am aware of when the public (and the academic Medical Informatics community, of which I am a part) gets to "peek behind the curtain" of an EMR's metadata.

Let's take a look.

I will summarize relevant part of the Motion and intersperse testimony and metadata from the actual record of Mr. Sweet (again, from a now-public court document).

The purpose of the Motion was to seek punitive damages:

A. SEEKING PUNITIVE DAMAGES

(1) This is a civil action for medical malpractice in which the Plaintiff alleges in essence that Samuel Sweet, a relatively healthy man of only 62 years of age, needlessly suffocated to death in the intensive care unit at UPMC after undergoing a routine cerebral angiogram when, the following day, physicians recklessly and prematurely pulled out his breathing tube and then could not get it back in when it became obvious Mr. Sweet would die without it.

(2) This case is listed for trial on September 19, 2011, and discovery has just concluded.

(3) In light of the evidence adduced in discovery, the Plaintiff seeks to amend the Complaint to re-characterize Defendant Murugan's and Defendant actions and inactions as willful, wanton, reckless and not merely negligent. The Plaintiff similarly seeks to amend the ad damnum clause against these defendants to include a request for punitive damages because of their shocking and reckless disregard for Mr. Sweet's welfare and their attempts to alter the appearance of the medical records, in full awareness of Mr. Sweet's brain death, so as to obscure what really happened.

It is the last part of count A.(3) I will address here, a quite serious charge involving medical record evidence spoliation, which is specifically forbidden in Pennsylvania by the Medical Care Availability and Reduction of Error (MCARE) Act of 2002 (PDF, see Section 511, "Preservation and accuracy of medical records", pg. 18-19) and other regulations.

Of importance, the Motion continues:

... (15) UPMC has a special warning system that is intended to serve the very purpose of alerting all medical providers of a patient with a difficult airway. The way it works [as UMPC defendants testified under oath - ed.] is the attending physician, writes up the problem list for the patient and need only put difficult airway in the list, and this will trigger a special yellow banner to pop up on the patient's computer files for all to see every time the chart is opened and every time any page is viewed.

Not only that, but then the words "difficult airway"appear in red text within the yellow banner, and this puts the viewers on notice to check the anesthesia record as to how intubation was done successfully in the past, so they can replicate the successful technique.

This patient was extubated after a procedure to check for brain bleeding, but by late at night it became obvious he could not breathe adequately on his own, and needed to be re-intubated.

Let's see how a chart appears with, and without the banner about a patient being difficult to intubate (due to their mouth and air-passage anatomy):


Real Electronic Medical Record screen of Mr. Sweet lacking warning banner, above; fictitious chart showing banner, below. [Why wasn't it the fictitious patient chart that was fiddled with? - ed.] Click to enlarge.


Such a warning apparently did not appear in Mr. Sweet's EMR chart, and that along with other failed communication (which can be read in the Motion) led to the re-intubation difficulties, and ultimately death. (I should note that it's possible the clinicians did flag the "difficult intubation" condition, but that the EHR lost the data through relational integrity problems, i.e., the information became "orphaned" from the patient's records, although still existing in the system somewhere.)

(27) ... not one person knew that there was a note from anesthesiology containing a road map for success, that included the use of a "Fast-Track LMA device", neither of which was ever brought in for Mr. Sweet that night when he needed the tube to be put back in.


Exhibit E. Under Oath. "A designation of difficult intubation automatically appears on a patient's banner bar if it is entered as a problem on the Problem List by the user selecting it from a drop-down menu list." (I tend to have doubts the problem list is that intelligent, but this is what was testified.) Click to enlarge.


Sworn testimony indicates nobody took the appropriate actions to enable the alert to appear on the EMR screens:


Admitted under oath. Nobody did what it would take to make a "difficult intubation" alert appear on Mr. Sweet's chart. Click to enlarge.

As a result of this missing data, the "syndrome of overconfidence in computers", and the toxic effect of poorly done health IT impairing clinician-clinician communications, physicians seeing this patient when he was under duress admit under oath they did not know of this intubation problem:


Dr. Kaura didn't know. Click to enlarge.


Dr. Sappington didn't know. Click to enlarge.

This is bad enough. The post-mortem chart fiddling issues I am addressing here begin with this:

C. (39) In the present case, after rounds of complex discovery battles, it became apparent that UPMC altered the records ... in this case, much of the record alteration was conducted by quality assurance officer, one Dr. Richard Simmons.

(40) Once the brain death of Mr. Sweet was known, a wave of record alteration and supplementation occurred, largely though not exclusively at the behest of Dr. Simmons ...

(41) For example, after Mr. Sweet was dead, when it could obviously not benefit his medical care, Dr. Simmons entered Mr. Sweet's computerized medical record, clearly looking into whether there had been a proper yellow-banner warning created through a problem list (which, of course, there was not).

Again, these are serious charges. Why would the plaintiff attorney raise these charges? Let's look at some metadata:


Exhibit K, showing quality assurance officer Dr. Simmons fiddling with Mr. Sweet's chart on May 19th several times during the day, as well as on the 22nd. Note circled entries. Note the gap (labeled) and the time of the last entry on the 19th, 15:23. Also note all these dates are post mortem by several days; death was on the 16th. Also note the times of entry, and the part of the chart accessed in the second round of accesses on May 19th - including "problem list" at 15:02. Click to enlarge.

I note that we are left to wonder what happened between access round two by the QA Officer on May 19 beginning 15:01 PM, and round three on May 22 at 14:03 PM. (Where are data for May 19th after 15:23 and May 20th and 21st, I wonder as well? This was not a weekend but midweek ...)

The Motion continues:

(42) Thereafter, even though Mr. Sweet was now long dead and such action could do him no good, Dr. Simmons tried to create a problem list that had originally been omitted by Defendant. He listed a difficult airway as the problem (even though obviously Mr. Sweet's problem list would have included many things, such as having undergone an angiogram and a minor cerebral bleed). In other words, Dr. Simmons tried to take the action necessary to make the computer show the yellow banner warning that was missing.

Here's more metadata seemingly supporting this statement. It's clear that nobody, including especially someone in Dr. Simmons' role should have been doing ANYTHING to the data that would or could raise suspicion of alterations via the metadata, such as times. Surely a presumably competent senior physician in a peer review role would have known this.

(I also note, shouldn't the record have been electronically "locked" by several days after death, thus causing any changes after the lock to appear in the normal "give us the legal medical record" outputs, not just in metadata?):


Exhibit L. Metadata showing Dr. Simmons on May 19th in the drop-down menu to make a problem list - then retracting it ("active --> cancelled") shortly afterwards. (I note the apparent cancellation time of 3:24 PM, i.e., 15:24, is just after the final May 19th entry of 15:23 on Exhibit K, when the several-day "gap" begins. I also note the patient died on May 16th. Curious... ) Click to enlarge.

But problems apparently occurred:

(43) It did not work. The yellow banner would not appear retroactively onto the otherwise completed record although he did succeed in altering the original record to look like there had always been a problem list. Further, during review of the "detail sheets," the Plaintiff discovered that Dr. Simmons, having failed to create a banner warning, tried to then delete or undo what he had attempted, but could not get it out of the computer tracking system. See Exhibit L hereof.

Let's look at the next part of Exhibit L:


Note the postmortem date of 5/19/2009 on this "problem list", and the attempted cancellation, presented as evidence. Note the time of the Problem list addition - 3:02 PM (i.e., 15:02 as in exhibit K above). Canceled as above at 3:24. Someone in Dr. Simmons' position should not have been fiddling with the problem list, knowing (or should have known, or should have made it his business to know) that footprints of fiddling in the metadata would, at the very least, raise eyebrows. Click to enlarge.

This does not look like the metadata that would be generated by peer review that I myself would perform ...

In summary, this unique Motion containing actual EMR metadata is, in my personal view, suspect for 1) imprudent post-death fiddling with the EMR records at best, and/or 2) attempts to alter the EMR to unjustly protect those who caused harm to come to this patient at worst.

I do not know which occurred, but hospital attorney Conti's excuse that "Dr. Simmons was in the medical record three days after Mr. Sweet died trying to figure out how one would create a warning about a patient's difficult intubation" [that is, entering new data not present before - ed.] could be either:

  • A sign of lack of computer and legal savvy of a senior clinician/UPMC Presbyterian's head of quality assurance, but whose intentions were pure, as explained above; or
  • The confabulations of an attorney caught with his pants down.

My personal opinion?

Want to buy a bridge in Brooklyn, members of the jury and Your Honor?


NY bridge for sale. Cheap.


The following also does not favorably influence my interpretation of the metadata:

(44) It is noteworthy that, prior to producing these results detail sheets that indicated such changes, UPMC attempted to file a motion for a protective order to bring all further discovery to a halt (a motion which was denied) even though the discovery deadline had not yet arrived.

Obviously, this is not for me to decide and will need to await court adjudication, but as a Medical Informatics specialist and someone with some investigative experience regarding computers and medicine, I am not happy with the looks of this.

I report, you decide.

There were other allegations in this plaintiff's Motion, again based on clinical IT metadata, regarding: unaccounted-for drugs of potential abuse (e.g., sedative propofol, the drug that killed Michael Jackson), the entry of fictitious data (such as vital signs, timing and medication administration by others including nurses), dictations coerced out of junior staff by senior personnel that might have been "spun" favorably to the medical center, etc., but those are the subject of later posts.

I again repeat the six-month delay in this case could potentially leave various problems with this EMR system unexposed and unremediated. This could unnecessarily expose the public to six more months of risk.

Addendum: if UPMC or the vendor take issue with posting of this material due to IP or other issues such as health IT gag clauses (which by the way are signed by hospital executives in violation of Joint Commission Safety Standards per my 2009 JAMA letter here and longer essay here), contact the Prothonotary Office in Pittsburgh, not me.

-- SS

Addendum:

What type of person was Mr. Sweet? This type:


Samuel E. Sweet Jr.
Cheswick

Samuel E. Sweet Jr., 62, of Cheswick, died Saturday, May 16, 2009, at UPMC Presbyterian Hospital. He was born Dec. 9, 1946, in New Kensington, son of the late Samuel E. Sweet Sr. and Marjorie (Secrist) Sweet. He was a resident of Cheswick for 33 years. He worked for the Army Corps of Engineers at Lock No. 2 of the Allegheny River and served in the Marine Corps during the Vietnam Era. He was a member of Hoboken Presbyterian Church, Blawnox Sportsmen Club, Blawnox "A" Club and the Springdale VFW. He enjoyed gardening and cutting grass. Survivors include his wife, Janet A. Sweet; sons, Samuel E. "Chip" (Michele) Sweet III, of Natrona, and William E. (Tracy) Sweet, of Edgewood; granddaughters, Kristin Ruff, of South Carolina, and Virginia Sweet, of Natrona; brother, John Thomas (Debbie) Sweet, of Warren; and nieces and nephews. Friends received from 2 to 6 p.m. Monday only, at the THOMAS M. SMITH FUNERAL HOME AND CREMATORY LTD., 930 Center Ave., Blawnox, followed by a funeral service at 7 p.m. in Hoboken Presbyterian Church, 921 North Ave., Blawnox, PA 15238. In lieu of flowers, the family respectfully suggests memorial contributions to Hoboken Presbyterian Church.
-- SS

Addendum:

This case was settled before going to trial for $1,375,000.

-- SS