Challenges with EHRs

1. Challenges with EHRs PHIMA Annual ConferenceHershey Lodge & Resort May 10, 2011

2. No Going Back! • $19 billion for EMR conversion • Average of $44,000.00/physician • Medicare reimbursement rates will be cut by up to 3 percent if no EMR system in place by 2014 • Current Levels of Adoption • Less than 5% of US Hospitals have comprehensive EMR systems • Approximately 3 in 10 hospitals have basic EMR system covering at least one aspect of care • 17% of office practices have EMR system • 4% of office practice has completely integrated EMR system • Veterans' Administration has had EMRs for nearly 20 years (VistA) • Stark/Anti-Kickback regulations relaxed to assist hospitals in conversion

3. From Photo Album to Facebook • Goals • Improve care by eliminating errors • Cost reduction • Impact • Pen & paper to "superfluous" data • Any combination of text, graphics or other information in digital form, created, maintained, modified, retrieved or distributed via computer, including: • Emails (Open or deleted) & Text Messaging • Voicemails • Calendars • The next generation of EMRs are leveraging accumulated treatment data for billing & treatment planning purposes. • Hidden costs in the form of: • Training • Archiving • Production

4. Training Day • Hidden Costs of Training • "How do you do this again?" • "Garbage in, garbage out" • Users must know how to use system or there will be errors. • "Power Users" • Avoid over-reliance on one user to answer questions because their absence could create a void that is hard to replace. • Changes to the medical record • No uniform method to make changes because each system is different. • No more signatures • "Log in" is the new signature. • Stress avoidance of entries under another person's log in to ensure the record is accurate.

5. National Archive • Hidden Costs of Archiving • Metadata • Embedded, unseen data tracking everykeystroke, deletion, change (who, what, when, where) • Delete does not mean "good-bye" • Alterations and "after the fact" entries are 100% clear • Metadata may be relevant when date, time, entry or source of document is in dispute • E-Discovery Services/Vendors are available to assist parties in identifying metadata issues. • System Failures • What is the backup? • Use handwritten notes? • How do you integrate handwritten notes once the system is restored? • Nefarious Behavior • Disgruntled workers • Identity theft • Viruses, etc.

6. What a Production?! • Hidden Costs of Production • EMR systems not designed with litigation in mind • Records Requests • What is produced on paper looks nothing like what is on screen. • Evolving EMR systems make it difficult to produce "snapshot" of record as it appeared in the past. • Depositions • Client may not be comfortable with hard copy record and may need electronic record to provide complete response. • If you utilize the electronic record, you will be educating your adversary on system capability and its limitations. • You may need technical support to assist in production of record and depositions to show what record looked like in the past. • EMRs could reveal system-wide error affecting a large class of patients. • Will reporting requirements result in more lawsuits?

7. The Word on the Street I'm a physician who works in two different practices (2 different EMR's). One of the two is basically user friendly, the other is not, both are slower than using a paper chart. What that means is, in the 15 min that I get per patient, more of the time is spent trying to look at the notes, and more time needs to be left for generating a new note at the end of the appointment. a different way of saying it less time with the patient. Also EMR'S were meant to reduce confusion and clarify the record which should reduce errors. I find the opposite to be true, since most physicians are not typists the records that are left are shorter, choppier, and full of non-standard abbreviations. this often renders them useless to anybody other than the person who wrote them . Lastly, I'll point out that some of the EMR's are more focused on fulfilling insurance requirements to get paid than they are on recording and conveying information about a patient's condition and treatment. As a case in point one of the EMR's that I work with is called Claim-Trak, not Patient-Trak, or Care-Trak. It's focus is getting the insurance claim entered, not caring for the patient. • January 25, 2011 at 04:17

8. The Word on the Street • Issues: • Lack of Integration (Two EMR systems) • Lack of Comfort (Is it training, or is the system poor?). • Feeling that the EMR also needs attention (fill out spaces) • Time crunch. • Documentation errors/Incorrect information remains. • Insurance companies get blame.

9. The Word on the Street • This article is the absolute truth. This RN will tell you I spend more time on computers than I do on humans. The patient is the one who suffers. I have found myself apologizing for not being attentive to their needs because "the chart" demands I take care of it first. Also, patients problems now must fit in a check box, kind of like a flowsheet. No more describing what the patient actually says, just mark a box if it is close enough. They won't remember years later when they file the lawsuit. EMR is the biggest joke and liability and trust me, your doc is not wading through the endless EMR "stuff" and you end up retelling your story every time. True story from an 18 year RN who has seen it all. • January 25, 2011 at 06:59

10. The Word on the Street • re emr's: garbage in and you know what fallows. i routinely get the clinical equivalent of "war and peace" with the push-a -button instant clinical visit report from medical offices that have invested a good deal of time and money on certifiable emr's.it is almost impossible to know why they sent their patient for a consultation. this does nothing to foster good medicine. it truly is garbage. • January 25, 2011 at 17:05

11. The Beauty of Gray—Mixed Signals • Federal Trade Commission Bureau of Economics Study—April 27, 2009 • Improve Care?—Yes. Save money—Yes. Help in med mal cases?--???? • With more detailed information about patient care than what is on paper record, there is an increase in chances that lawyer will find more evidence of wrongdoing. • However, survey of 41 malpractice cases showed no hindrance of defense. • Hospitals will be 33% less likely to adopt electronic medical records if state laws facilitate the use of additional information not available in paper record. • 77% of trial lawyers feel that courts did not understand the difficulties of e-discovery. • 87% of trial lawyers feel that e-discovery increases litigation costs. • Efforts to streamline use of electronic data in litigation should be enacted to reduce perceived costs from EMR-enabled malpractice claims.

12. The Beauty of Gray—Mixed Signals • Archives of Internal Medicine: "Electronic Health Records and Clinical Decision Support System-Impact on National Ambulatory Care Quality" • Published 1/24/11 • Conclusion: "[N]o consistent association between EHRs and Clinical Decision Support and better quality. These raise concerns about the ability of health information technology to fundamentally alter outpatient care quality." • Nearly 255,000 patient visits scrutinized between 2005-2007. • Senior author of study said one reason for disappointing results is that physicians might require more training. • The study has also been criticized as being performed prematurely and is not reflective of current use of EMR systems.

13. Lawyers, E-Discovery & Money • Lawyers Will Have Access to EMR Systems. . . . • Cornwell v. N. Ohio Surgical Ctr, 2009 WL 7174172 (Ohio App. 6 Dist. Dec.31, 2009) Court allows forensic imaging/copying of medical records contained on defendants' hard drives. • Pressler/Luchetta v. Perlmutter, M.D., etal. (Pennsylvania) No HIPAA violation if forensic computer expert has access to health care provider's EMR system. • To Prove a Fraud or Records Alteration. . . • Hamre v. Mizra,2005 WL 1083978 (S.D.N.Y. May 9, 2005) Plaintiff's request for adverse inference charge denied where health care provider failed to maintain certain electronic information in chart, including vital signs and temperature chart, only because plaintiff did not put forth this information in evidence. • Wild v. Alster,377 F. Supp. 2d 186 (D.D.C. 2005) In cosmetic laser surgery malpractice case, plaintiff's lawyer's request to examine health care provider's computer metadata regarding digital photos to prove they were altered was denied as untimely. • And Try to Obtain Client Emails to Their Counsel. • Scott v. Beth Israel Medical Center, Inc. 2007 N.Y. Misc. LEXIS 7114 (Oct. 17, 2007) (Emails from doctor to attorney not attorney/client privileged). • Stengart v. Loving Care Agency,990 A. 2d 650 (NJ 2010). (March 30, 2010). (Emails to attorney is attorney/client privileged). • Question: What if the NJ client emails his NY attorney?

14. You Can't Stop E-Discovery • Federal Rules of Civil Procedure Changes • Rule 16 (Pretrial Conferences; Scheduling Management) & Rule 26 (General Provisions Governing Discovery; Duty of Disclosure) • Must address issues pertaining to the disclosure and discovery of electronic information. • Rule 33 (Interrogatories to Parties) • Expressly provides that an answer to an interrogatory involving the review of records should involve a search of electronically stored information. • Rules 34 & 35 (Production of Documents) • Need only be produced in one form (hard copy or electronic) • Rule 37 (Failure to Make Disclosure or Cooperate in Discovery; Sanctions) • "Safe Harbor" protections if • lost because of the routine operation of the party's computer system, and; • the party took reasonable steps to preserve the information.

15. Taking It to The States • 21 states have adopted federal rules or version thereof • 25 States have made minimal to no changes • Just because a state doesn't have a rule change, doesn't mean they are not entitled to e-discovery. • Some states are amending definition of medical record to include EMRs. • Pennsylvania? • Proposed State Rules of Civil Procedure include e-discovery component (See Proposed Rules: 4009.1; 4009.11; 4009.12; 4009.21; 4009.23 & 4011) • Solution • Agreements between counsel to exclude electronic evidence from discovery process. • Without clarification from the courts on e-discovery issues, e-discovery can be costly. Is it worth the cost?

16. Save Me! • Duty to Preserve • For Both Parties (Plaintiff & Defendant) and their Attorneys • Medical Malpractice Plaintiffs • Home computers • Facebook/Twitter • Texting/Smartphones • Email and email accounts • Begins "whenever litigation is reasonably anticipated" • What does this mean? • Records request? • Incident report? • Patient/family complaint? • Ongoing Duty • Attorneys should place "litigation hold" on potentially relevant data • Litigation hold needs to flow down • "It is not sufficient to notify all employees of a litigation hold and expect that a party will then retain and produce relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched."

17. HIM's More Important Than Ever • Attorneys must not only meet with risk manager and/or client, but also the "computer guys" • Meet early with IT staff to become familiar with document retention policies and computing infrastructure. • Discuss costs • Learn about limitations/preservation issues, if any. • Determine how long will it take to collect, process, review and produce the electronic data? • Obtain the EMR system vendor information.

18. Paper or Plastic?--EMR Production • Determine the production format. • Most cases – Paper should suffice. • Metadata may be relevant when date, time, entry or source of document is in dispute. • What happens if Plaintiff wants information in native form? • Issue of Proprietary Software • Hospitals don't own EMR system • How do you give the data in format that can be utilized? • What will EMR vendor say? • Intervention by EMR system vendor? • Are they a part of the problem or the solution? • As a compromise, give hard copy with a chance to review the EMR with IT present. • Reveal production issues early • It may be better to confront issue early on to avoid spoliation or "cover up" allegations.

19. More Info Than You Need to Know • Anticipated EMR Discovery Requests: • EMR system inquiries including: • Whether it has preset standard responses, such as automatic times for entries? • Vendor information, including contracts, manuals, system updates/upgrades and product information. • Where and how is the archived EMR stored? • Identity of the IT team. • Training confirmation, including information on individual users. • Minutes/memos and other administrative documents generated with respect to purchase and/or maintenance of EMR system. • Whether EMRs are printed and if so, how are these records retained? • Data points of entry/remote access. • Policies and Procedures regarding: • EMR corrections • Backup and restoration of EMR data • EMR documentation standards • Login and passwords

20. If the Case Wasn't Difficult Enough. . . • In preparing witnesses for depositions, be aware of: • Metadata versus documented entries • Policies and procedures re: data administration • Knowledge of system use • Charting by exception • Hard copy versus electronic record • EMR system then and now • Press releases regarding what EMR system can do

21. New Wrinkles • Corporate Negligence • Potential Claims: • Failure to train staff to use system; • Failure to enforce policies & procedures; • Unsafe/unreliable EMR system; • Alteration or Destruction of Information • Standard of Care • Access to patient's complete medical history: • What is considered a reasonable review of past medical history? • In response to records requests, what records should be produced? • Greater reliance on "charting by exception" (documentation of pertinent negatives) • As a result, you must counter the argument: "If it's not documented, it did not happen."

22. Top Ten Questions After Conference • Have our state rules of civil procedure been amended to include e-discovery? • Are we preserving the electronic record? • Who from IT or Medical Records can we trust in a deposition? • Does our staff really know what they're doing when it comes to EMR charting? 6. Have we been saving all our contracts; manuals; and all other documents pertaining to EMR conversion & training?

23. Top Ten Questions After Conference • Do we have a uniform policy for making EMR charting corrections? • Can we print what the record actually looked like on the monitor at the time at issue? • Does our system invite less than accurate or deceptive record practices (charting by exception; sticky notes)? • What happens when the system "goes down?" 1b. How can I educate my attorneys about our system? 1a. Is it 5 o'clock yet?

24. Thank You! Matthew P. Keris, Esq. Marshall, Dennehey, Warner, Coleman & Goggin Mailing Address: P.O. Box 3118Scranton, PA 18505-3118 Street Address:50 Glenmaura National Boulevard Moosic, PA 18507-2101 (570) 496-4602 phone / (570) 496-0567 fax mpkeris@mdwcg.com Pennsylvania ● New Jersey ● Delaware ● Ohio ● Florida● New York