Liability and the EHR

Transcription

1 Cheryl Peaslee RN, BSN, MBA, CPHQ Vice President, Risk Management Liability and the EHR The Maine Association for Healthcare Quality Annual Fall Education Program November 28, 2012

2 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

3 The story begins

4 Chapter 1: How did we get here?

5 ONC Data Brief No. 1 February 2012

6 Chapter 2: The Dream Welcome to Oz

7 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

8 Chapter 3: The demise of the Wicked Witch of the East The Wicked Witch of the West vows revenge

9 What threats are we seeing?

10 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

11 Information Overload Multiple sources of information Repetitive information Patient addendum Paper and electronic

12 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?

13 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

14 From a Pediatric Cardiologist The Devil in Design 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

15 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

16 The Trouble with Templates

17 The Problem with Predesigned Processes TEST ORDERED TEST COMPLETED RESULT RECEIVED TO ORDERING PHYSICIAN INBOX RESULT REVIEWED TREATMENT PLANNED PT NOTIFIED

18 Potential Problems with the Patient Portal MU: Use secure messaging to communicate with patients on relevant health information (more than 5%)

19 E-Communication Physician Insurers Association of America report: o $71.8 million in indemnity payments were made for 786 telephone-related malpractice claims

20 Chapter 4: More evidence of issues The Apple Throwing Trees

21 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.

22 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.

23 Clock Synchronization An eight-minute difference was noted between the computer and the cardiac monitor Pennsylvania Patient Safety Authority

24 ECRI TOP 10 HEALTH TECHNOLOGY HAZARDS FOR 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

25 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)

26 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

27 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.

28 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.

29 Chapter 5 And then there is The Field of Poppies

30 Chapter 7 The Flying Monkeys I ll get you my pretty

31 Clinical Decision Support Clinical guidelines Clinical reminders Drug allergy alerts Drug drug interaction alerts Drug laboratory interaction alerts Drug dose support

32 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

33 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.

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35 Discovery Pertains to pretrial access to witnesses or documents: Oral depositions Interrogatories Paper documents/records Electronically stored information (ESI)

36 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

37 E-Discovery Electronically stored information (EIS) in any medium: s Text messages Voice messages Mobile phone data ipad Thumb drives Camera Laptops

38 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 , 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

39 The Printed Record Electronic medical records were not meant to be printed.

40 Screen Shots from the Past 2007: 1 st version of EHR when the care at issue occurs 2008: first request for record, upgraded to 2 nd version 2009: suit is filed, 3 rd version 2010: written discovery begins, 4 th version is in place 2012: depositions occur, EHR in 6 th version Matthew P. Keris The Legal Intelligencer February 14, 2012

41 Chapter 8 Where will the road lead?

42 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

43 Chapter 9 But then there is the Good Witch! Progress in Achieving the Dream

44 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

45 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

46 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

47 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

48 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

49 Chapter 10 The wizard leaves without Dorothy Living in Oz

50 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)

51 Final Chapter

52 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

53 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

54 The End

55 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.

56 Resources Electronic Health Record Systems and Intent to Attest to Meaningful Use among Non-federal Acute Care Hospitals in the United States: 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

57 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