Discovery Is Changing

The practice of medicine is changing significantly due to two developments: the increasing use of electronic health records (EHRs) by hospitals and physicians, and the use of increasingly sophisticated computerized clinical-decision support systems. These developments promise to affect medical-malpractice litigation profoundly, primarily in establishing liability. But also ' of particular interest to me as a forensic economist ' these innovations will affect the assessment of economic damages claims.

Determining damages is an exercise in research on the costs associated directly with the injury, the extent of lost earning power, the effects of inflation, productivity and other economic variables. Generally, the more information that is available, the more comprehensive the damages report. The adoption of EHRs should make detailed and comprehensive discovery of damages in medical-malpractice matters that much easier to accomplish.

Medical malpractice attorneys should now be thinking about how discovery as to both liability and damages might be better focused in the coming age of electronic medicine ' the future is closing in rapidly.

Change Is Here

The federal government's drive to promote the universal adoption of electronic health records (EHRs) is moving into high gear. Medicare is plying hospitals and private medical practices with significant financial incentives to go digital this year, and mind-boggling advances in the application of digital intelligence to the practice of medicine are now underway.

Television viewers got a glimpse of the awesome capabilities of digital intelligence in February when “Watson,” the IBM computer, decisively defeated its two human rivals on Jeopardy. Watson's encyclopedic knowledge, pitch-perfect command of English and lightning-fast reaction time was amazing to behold. Buried or ignored in the press coverage was the fact that Watson's father, IBM, has sent Watson (Dr. Watson?) to medical school.

Following Watson's TV triumph, IBM announced that Watson's next career is as a medical assistant. Collaborating with Columbia University and the University of Maryland, IBM is transforming Watson into a cyber-consultant to physicians, a super-smart colleague who will advise practitioners on diagnoses and treatment, all as early as mid-2012.

The recent article “Medical Malpractice Liability in the Age of Electronic Health Records” (Sandeep S. Mangalmurti, MD, JD; Linsdey Murtagh, JD, MPH; Michelle Mello, JD, PhD, New Engl J Med 363:21, Nov. 18, 2010) examines how the adoption of EHRs and the integration of increasingly sophisticated computerized “clinical-decision support systems” (like Watson) will likely affect medical-malpractice liability.

The authors report that the use of EHRs is now far from universal. However, use of EHRs and digital diagnostic support promises to grow. The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 offers hospitals and physicians significant financial incentives to adopt EHR technology. Starting this year, hospitals adopting EHRs can receive incentive payment of up to $2 million from Medicaid. Private practices adopting EHRs can get up to $64,000 in incentives.

The article charts the likely effects of EHR on liability over the course of its implementation. In their early stages, adoption of EHRs will, the authors say, likely increase the risk of medical-malpractice liability. Studies have shown the risk of error increases during the implementation of new technology. Information may be entered into the system incorrectly. They note one court opinion that indicates that hospitals may have a duty to “implement a reasonable procedure” to eliminate risks during the implementation phase of new technology: Smith v. U.S., 119 F. Supp. 2d 561 (D.S.C. 2000).

The authors note that, while many believe that the use of EHR technology will tend to eliminate risk and liability when implemented properly (some insurance companies offer lower rates to physicians who use the technology), there is no empirical evidence that this is the case. In fact, computerized systems may create vulnerability to new kinds of errors. Drugs may be prematurely canceled by automated systems, for example. Poorly designed systems might mis-prescribe drugs initially. The existence of EHR histories may discourage doctors from seeking new information from patients. Records of messaging systems and physicians' notes open new avenues of vulnerability, as messaging systems record not only content, but response times and any alterations of physicians' notes.

Standards of Care

The adoption of EHRs could also have a profound effect on standards of care. Up until now, the appropriate standard of care was a subject to be debated by expert witnesses. Will clinical-decision support systems be admissible as evidence regarding the proper standard of care? Will doctors who use them still be vulnerable to medical malpractice claims?

As the use of EHRs evolves as a tool for doctors, so too will its uses in medical-malpractice litigation discovery. Effective in 2006, new Federal Rules of Civil Procedure allow extensive discovery of electronic records. EHRs are considered discoverable business records, with some exceptions. Some personal-health records may be privileged, but that privilege may be overridden if the records were relied on by the defendant doctor in a medical-malpractice matter.

In a much-referenced article “Litigation in the Decade of Electronic Health Records (NJLJ, June 8, 2007), authors Joel B. Korin and Madelyn S. Quattrone detail some legal problems encountered by early adopters of EHR systems. The article, which cites instances where EHR systems distracted medical-care providers from bedside duties, raising the prospect of new risks of medical malpractice liability, speculates that new standards of care will arise whereby doctors will have a duty to access EHRs. The authors also explore the implications of the discovery of “meta data” ' the hidden electronic fingerprints embedded in EHR systems that reveal the history of any record entry, showing when records are entered, edited, when phone calls are returned and details involving any “override” of EHR systems by physicians.

Med-Mal Litigation and Damages

Clearly, the increased detail afforded by EHRs and the increased sophistication of systems designed to offer physicians clinical assistance means that discovery of medical-malpractice liability will become more detailed ' more information will be available and standards of care may shift accordingly. As with the liability side, EHRs promise to change discovery regarding economic-damages issues.

The medical-malpractice claims that result in the highest settlements and verdicts are those that include as damages the cost of continuing care of a catastrophically injured plaintiff. In these cases, assessing damages is largely a team effort involving a life-care planner, who lists the type, costs and duration of necessary future-care equipment, treatment and procedures; a vocational specialist, who can opine as to a probable career path absent the malpractice; and the economist, who takes the reports from these experts and calculates the total economic impact, accounting for productivity, inflation, possibly taxes, and reducing future losses to present value.

EHRs would benefit the life-care planner significantly by offering a detailed look at the treatment protocols the injured person has received and at the list all the health professionals that have interacted with the inured person. In addition to reviewing records, life-care planners often interview the health-care team that interacted with the patient, in order to assess the probable extent of needed future care. EHRs clearly make this easier, as much of the information and contact data needed would reside in one central location.

In cases where the injury is not profound, and post-injury employment is a possibility, EHRs might offer valuable insight to the vocational specialist who determines pre- and post-injury capabilities of the injured person.

For the economist and the vocational specialist, access to EHRs could be valuable to the extent that they might show preexisting limitations such as drug abuse ' assuming the EHRs are discoverable.

Obviously, we must all continue to monitor developments in this area, which promise to accelerate as health-care providers adopt the use of EHRs.

Chad L. Staller, MBA, JD, MAC, a member of this newsletter's Board of Editors, is president of the Center for Forensic Economic studies, www.cfes.com, a Philadelphia-based firm providing economic and statistical analysis and testimony in injury, employment, and commercial litigation. He can be contacted at [email protected].

The practice of medicine is changing significantly due to two developments: the increasing use of electronic health records (EHRs) by hospitals and physicians, and the use of increasingly sophisticated computerized clinical-decision support systems. These developments promise to affect medical-malpractice litigation profoundly, primarily in establishing liability. But also ' of particular interest to me as a forensic economist ' these innovations will affect the assessment of economic damages claims.

Determining damages is an exercise in research on the costs associated directly with the injury, the extent of lost earning power, the effects of inflation, productivity and other economic variables. Generally, the more information that is available, the more comprehensive the damages report. The adoption of EHRs should make detailed and comprehensive discovery of damages in medical-malpractice matters that much easier to accomplish.

Medical malpractice attorneys should now be thinking about how discovery as to both liability and damages might be better focused in the coming age of electronic medicine ' the future is closing in rapidly.

Change Is Here

The federal government's drive to promote the universal adoption of electronic health records (EHRs) is moving into high gear. Medicare is plying hospitals and private medical practices with significant financial incentives to go digital this year, and mind-boggling advances in the application of digital intelligence to the practice of medicine are now underway.

Television viewers got a glimpse of the awesome capabilities of digital intelligence in February when “Watson,” the IBM computer, decisively defeated its two human rivals on Jeopardy. Watson's encyclopedic knowledge, pitch-perfect command of English and lightning-fast reaction time was amazing to behold. Buried or ignored in the press coverage was the fact that Watson's father, IBM, has sent Watson (Dr. Watson?) to medical school.

Following Watson's TV triumph, IBM announced that Watson's next career is as a medical assistant. Collaborating with Columbia University and the University of Maryland, IBM is transforming Watson into a cyber-consultant to physicians, a super-smart colleague who will advise practitioners on diagnoses and treatment, all as early as mid-2012.

The recent article “Medical Malpractice Liability in the Age of Electronic Health Records” (Sandeep S. Mangalmurti, MD, JD; Linsdey Murtagh, JD, MPH; Michelle Mello, JD, PhD, New Engl J Med 363:21, Nov. 18, 2010) examines how the adoption of EHRs and the integration of increasingly sophisticated computerized “clinical-decision support systems” (like Watson) will likely affect medical-malpractice liability.

The authors report that the use of EHRs is now far from universal. However, use of EHRs and digital diagnostic support promises to grow. The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 offers hospitals and physicians significant financial incentives to adopt EHR technology. Starting this year, hospitals adopting EHRs can receive incentive payment of up to $2 million from Medicaid. Private practices adopting EHRs can get up to $64,000 in incentives.

The article charts the likely effects of EHR on liability over the course of its implementation. In their early stages, adoption of EHRs will, the authors say, likely increase the risk of medical-malpractice liability. Studies have shown the risk of error increases during the implementation of new technology. Information may be entered into the system incorrectly. They note one court opinion that indicates that hospitals may have a duty to “implement a reasonable procedure” to eliminate risks during the implementation phase of new technology: Smith v. U.S. , 119 F. Supp. 2d 561 (D.S.C. 2000).

The authors note that, while many believe that the use of EHR technology will tend to eliminate risk and liability when implemented properly (some insurance companies offer lower rates to physicians who use the technology), there is no empirical evidence that this is the case. In fact, computerized systems may create vulnerability to new kinds of errors. Drugs may be prematurely canceled by automated systems, for example. Poorly designed systems might mis-prescribe drugs initially. The existence of EHR histories may discourage doctors from seeking new information from patients. Records of messaging systems and physicians' notes open new avenues of vulnerability, as messaging systems record not only content, but response times and any alterations of physicians' notes.

Standards of Care

The adoption of EHRs could also have a profound effect on standards of care. Up until now, the appropriate standard of care was a subject to be debated by expert witnesses. Will clinical-decision support systems be admissible as evidence regarding the proper standard of care? Will doctors who use them still be vulnerable to medical malpractice claims?

As the use of EHRs evolves as a tool for doctors, so too will its uses in medical-malpractice litigation discovery. Effective in 2006, new Federal Rules of Civil Procedure allow extensive discovery of electronic records. EHRs are considered discoverable business records, with some exceptions. Some personal-health records may be privileged, but that privilege may be overridden if the records were relied on by the defendant doctor in a medical-malpractice matter.

In a much-referenced article “Litigation in the Decade of Electronic Health Records (NJLJ, June 8, 2007), authors Joel B. Korin and Madelyn S. Quattrone detail some legal problems encountered by early adopters of EHR systems. The article, which cites instances where EHR systems distracted medical-care providers from bedside duties, raising the prospect of new risks of medical malpractice liability, speculates that new standards of care will arise whereby doctors will have a duty to access EHRs. The authors also explore the implications of the discovery of “meta data” ' the hidden electronic fingerprints embedded in EHR systems that reveal the history of any record entry, showing when records are entered, edited, when phone calls are returned and details involving any “override” of EHR systems by physicians.

Med-Mal Litigation and Damages

Clearly, the increased detail afforded by EHRs and the increased sophistication of systems designed to offer physicians clinical assistance means that discovery of medical-malpractice liability will become more detailed ' more information will be available and standards of care may shift accordingly. As with the liability side, EHRs promise to change discovery regarding economic-damages issues.

The medical-malpractice claims that result in the highest settlements and verdicts are those that include as damages the cost of continuing care of a catastrophically injured plaintiff. In these cases, assessing damages is largely a team effort involving a life-care planner, who lists the type, costs and duration of necessary future-care equipment, treatment and procedures; a vocational specialist, who can opine as to a probable career path absent the malpractice; and the economist, who takes the reports from these experts and calculates the total economic impact, accounting for productivity, inflation, possibly taxes, and reducing future losses to present value.

EHRs would benefit the life-care planner significantly by offering a detailed look at the treatment protocols the injured person has received and at the list all the health professionals that have interacted with the inured person. In addition to reviewing records, life-care planners often interview the health-care team that interacted with the patient, in order to assess the probable extent of needed future care. EHRs clearly make this easier, as much of the information and contact data needed would reside in one central location.

In cases where the injury is not profound, and post-injury employment is a possibility, EHRs might offer valuable insight to the vocational specialist who determines pre- and post-injury capabilities of the injured person.

For the economist and the vocational specialist, access to EHRs could be valuable to the extent that they might show preexisting limitations such as drug abuse ' assuming the EHRs are discoverable.

Obviously, we must all continue to monitor developments in this area, which promise to accelerate as health-care providers adopt the use of EHRs.

Chad L. Staller, MBA, JD, MAC, a member of this newsletter's Board of Editors, is president of the Center for Forensic Economic studies, www.cfes.com, a Philadelphia-based firm providing economic and statistical analysis and testimony in injury, employment, and commercial litigation. He can be contacted at [email protected].