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The CMG Voice

Concerns about electronic medical records are increasing

Posted Monday, August 11, 2014 by Gene Moen

The Pittsburgh Post-Gazette ran a recent story about the increasing numbers of complaints about Electronic Medical Records (EMRs). Like many technological developments, the theory about increasing benefits often masks the reality of implementing the technology. The Affordable Care Act includes provisions requiring that all hospitals and clinics implement electronic record keeping, and it even includes funding to help smaller clinics with the cost of doing so. The idea was that this would help in communicating health information between providers and result in savings for the health-care industry.

From the beginning, attorneys who handle medical malpractice cases have complained about difficulties in understanding the records and following the “trail” of decision-making in hospitals. It is now apparent that many doctors and nurses have experienced the same problems and have been reporting them to the FDA under its adverse events database, known as MAUDE (Manufacturer and User Facility Device Experience).

That database is now being flooded with complaints about how EMRs are resulting in erroneous orders being followed, excessive or inadequate drug dosages given, and erroneous lab reports. As one commentator said, most mistakes “have got something to do with faulty user-device interaction.” In other words, the devices may work fine but they are being used by human beings, who tend to make mistakes. Others say the EMR systems are under-tested, users are under-trained, and there has been little in the way of coordinating experiences across different medical facilities and EMR systems.

Some groups, like the National Nurses United (the largest national nurses’ union) have urged that the race to universal EMRs use be slowed down until there has been “robust research showing that EMRs can and do, in fact, improve patient health and save lives.” They have asked that the FDA test and approve EMR systems just as they do with drugs and medical equipment. So far, the FDA has declined to take on that task.

In today’s world of rapid technology change, it is probably futile to try to slow down medical information technology. In the old days, deciphering bad handwriting was the big challenge. Now the challenge is to understand how EMR systems work and how to track the medical decision-making that is recorded in those systems.

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Malpractice Defendants Try to Prevent Expert Testimony

Posted Wednesday, August 6, 2014 by Gene Moen

Almost every medical malpractice claimant must present expert testimony by qualified medical experts. The testimony may relate to the standard of care and whether the defendant complied with it, or it may relate to causation, i.e., did the medical negligence cause the injury?

It has always been difficult for plaintiffs to obtain good expert testimony, in part because of the natural tendency of doctors to not want to testify against another doctor. In some specialty fields, like endovascular brain surgery, the difficulty is compounded by the fact that only a small number of doctors are qualified in that field and most of them know each other or have contact with each other through medical meetings and forums.

In recent years, there has been a concerted effort to make it even harder to find qualified experts. National medical groups, such as those involved with obstetrics, neurosurgery, and orthopedic surgery, have developed “rules” which are meant to provide guidance for their members who testify as experts. The rules, of course, make it even more onerous and risky for a doctor who agrees to testify for a plaintiff. The national neurosurgery group, for example, has publicly chastised and even kicked out several neurosurgeons who testified for plaintiffs against a neurosurgeon.

In one case, the neurosurgeon sued the organization and won reinstatement. In some other cases, national medical groups have taken the position that testimony by one of its members constitutes the “practice of medicine” in the state in which the testimony is given. Since most medical malpractice attorneys often utilize out-of-state experts, this would mean the expert would have to seek admission to practice in the state where the case is tried. This would be such an onerous burden few experts would agree to be an expert in other state.

In another case, the national orthopedic group has a lengthy “contract” it asks its members to sign before agreeing to testify, and among other requirements the physician must pledge to review all medical records that may arguably be relevant. Since some claimants have lengthy medical histories spanning decades of care, this burden could add many hours to the expert’s review, and cost many thousands of additional dollars for the plaintiff’s attorney.

Despite all of these burdens and obstacles, it is a tribute to the medical profession that there are physicians who feel they have an obligation to patients to help identify malpractice or negligence and to come forward to testify on behalf of the injured patient. Without that willingness, the courthouse door would be shut to many claimants who have meritorious claims.

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Medication errors are common after discharge from hospitals

Posted Monday, August 4, 2014 by Tyler Goldberg-Hoss

A new US study highlights how prevalent errors are when patients are discharged from the hospital with instructions to take medications.

Read the full article here:

Medication errors may be common after hospital discharge

The study focused on patients who had been hospitalized for heart related conditions. It found that 20-30% of post-hospitalization prescriptions are never filled, and half are not continued as prescribed.

The study tied errors to a patient’s “health literacy,” defined as a patient’s ability to interpret and act on health information. Patients with a high health literacy were less likely to commit a prescription error, but the percentage difference was surprisingly low: those patients with the highest health literacy scores were only 16% less likely to make an error compared with patients who scored the lowest.

Interestingly, two better predictors for success were gender and relationship status. Women were 40% less likely than men to make a mistake, and single people were almost 70% more likely to make a mistake than married patients.

Patients and health care providers can share responsibility for medication errors. Potential medical malpractice claims can arise when a health care provider, particularly a physician or a nurse, doesn’t act in a reasonably prudent manner in instructing a patient regarding his or her medications, or failing to prescribe necessary medications, and injuries occur.

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Hospitals Feeling the Squeeze on Discharging Patients Too Quickly

Posted Friday, August 1, 2014 by Gene Moen

For years, there has been health insurance pressure on hospitals to more quickly discharge patients once it is felt that intense hospital-based care is no longer needed. We all hear patients and their families complain that patients are being pushed out of hospitals, either to return home or into nursing home or rehab facilities, before they are ready to cope with the aftermath of their illness. But the financial incentives are strong to discharge, and hospitals responded accordingly.

Now there is counter-pressure. A recent article in the Puget Sound Business Journal points out that a provision of the Affordable Care Act penalizes hospitals whose rates of “return” patients are considered too high. The article, titled “Hospitals get help so patients can escape the revolving door of readmissions,” is in the July 28, 2014 issue of the publication. This doesn’t necessarily mean that patients will be kept in the hospital longer, but it does mean that a discharge must take into account the outpatient care that is required to avoid a re-admission of the patient. Part of that may mean an additional day or two in the hospital as a plan is developed with the patient and family for outpatient care after discharge.

The problem of emergency room re-admissions was recently dealt with in a book, Bouncebacks!, by two ER physicians. The book chronicles stories of patients who were admitted to the ER, did not receive adequate diagnosis or care and were later re-admitted with a much more serious condition.

The authors point out that there is always financial pressure on ER personnel to quickly process and discharge patients, but the problem of re-admissions may mean much more in health care costs, both to the individual and to society. There is no question that monetary concerns are now a major driver of health-care decisions, and finding the right balance may be hard to attain. But the pendulum now seems to be moving toward the need for a more careful diagnosis and care plan, even if it means a slightly longer hospital stay, in part to avoid the costs of having patients become sicker and being re-admitted to the hospital.

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“Transparent Accountability” Needed to Prevent Hospital Deaths from Medical Mistakes

Posted Monday, July 28, 2014 by Gene Moen

In 1984, the National Institute of Medicine reported that an estimated 98,000 people died in U.S. hospitals each year as a result of preventable medical errors. That figure shocked many people, but a more current study has now estimated that a more accurate figure would be that 400,000 people die from hospital-based medical errors. The study was published in the Journal of Patient Safety and relied upon four other studies that estimated patient deaths in hospitals.

The author of the study concluded that curtailing this epidemic of patient harm would require, among other things, “transparent accountability for harm” and concerted efforts to correct the root causes of harm. He also pointed out that it doesn’t really matter whether “only” 98,000 people die each year as opposed to 400,000. Even the lowest figure is the equivalent of a jumbo jet crashing every day of the year and killing all on board.

Even one such crash results in a massive effort by the airline industry and the government to determine the cause of the crash and to ensure that actions are taken to prevent another such crash. Yet the medical industry — and the government – tolerates an incredible death toll from medical mistakes in hospitals, and very little is done.

“Transparent accountability” is a laudable goal, but is it realistic to expect that the hospital where an error results in death will tell the family what happened and accept responsibility? Interestingly, other studies have shown that when that occurs – when hospitals accept responsibility – it is much less likely the family will seek legal help to determine why their loved one died.

We all get calls from potential clients who say that after the bad outcome, the providers seemed to disappear or, on occasion, someone from “risk management” appears on the scene and explains how important it is to the hospital to listen to patient complaints so that care can be improved. Follow-up, however, seldom happens and a polite and bland letter is usually the most the family will receive. Often the major motivation for a potential client calling a malpractice attorney is to make sure the same thing doesn’t happen to some other patient.

Medical malpractice claims may be a crude and certainly imperfect means of holding a hospital accountable for a death from medical error, but it may be the only effective way to do that. Hospitals don’t like lawsuits, and insurance companies don’t like paying money for someone’s mistakes, so the cumulative effect – hopefully – is to ensure that someone is actually trying to avoid those events.

Malpractice attorneys all know of cases where very specific corrective steps were taken as a result of a lawsuit being brought, and there are probably many others where changes are made that we never learn about. Achieving accountability for medical malpractice is the goal, but that process may also involve needed changes to prevent yet more deaths.

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