The Wall Street Journal
Editorial Submission
Submitted by:  Matthew Radin, Conflict Management Attorney and Mediator 
Liberty Group/ Healthtors Association
www.healthtors.com

 Electronic Medical Records

Streamlining Healthcare Processes without Streamlining Claim, Legal and Conflict Resolution Processes Will Increase Medical Malpractice Claims, Increase Costs and Drive More Physicians Out of the Practice of Medicine 

A November 2008 report from The Physicians’ Foundation says that nearly half the nation’s practicing primary care physicians—more than 150,000—will stop practicing or reduce the number of patients seen. The reasons for dissatisfaction among primary care physicians, once referred to as general practice or family doctors, include “increased time dealing with nonclinical paperwork, difficulty receiving reimbursement and burdensome government regulations.”

Doctors are leaving their practices often because of overwhelming and ever-increasing malpractice costs and ever-decreasing reimbursements.  The premiums malpractice insurers charge physicians keep increasing to keep pace with the enormous awards lawyers often seek, through settlement or a jury trial. At the same time, doctors are paid less for services because of reimbursement reductions. 

This Physicians’ Foundation report was written before the President announced his goal to digitize medical record systems in both the hospital and physician’s office.  If implementations of these systems do not address the needs of physicians, the flight of physicians from the practice of medicine can be expected to increase even further. 

Physicians need an advocate to represent their interests in these discussions.  Physicians need solutions to their primary business problem; i.e., shrinking profits.  They need solutions that will increase reimbursements and decrease costs.  With respect to Electronic Medical Records (EMRs), they need solutions that will enable the physician to pay for the EMR and use the EMR in a way that enhances physician profitability. 

Dr. Sam Bierstock, Founder of Champions in Healthcare, has been educating me about the handful of major vendors of Hospital EMR Systems and the hundreds of vendors of Physician EMR Systems … most of which do not communicate with each other. While the Hospital EMR systems are helping the hospital to enhance profitability, little is being done to help the physician.  I have interviewed several physicians who report that the incidence of medical errors in physicians offices are increasing with EMR implementations, because the EMR systems are time consuming and cumbersome to use in comparison to their paper-based counterparts.  In most cases, physicians are straddling two systems, one paper and one electronic … which, in reality is NO system at all.  Without a single comprehensive EMR and document management solution, these systems can be expected to increase, not decrease, administrative costs and malpractice risk.

Change is tough.  Let’s assume that these risks will diminish over time as the EMR systems improve and as younger, computer-savvy physicians figure out how to make them work for their offices.  We still must deal with the problem of keeping physicians in the practice of medicine over the next ten years. 

The “Four Cornerstones of Value-Driven Health Care" outlined by the United States Department of Health and Human Services (HHS)  are:

1. Support health information technology
2. Provide quality information
3. Provide pricing information
4. Promote quality and efficiency of care

In order to keep physicians in the practice of medicine, HHS should also support a companion proposed “Four Cornerstones of Value-Driven Healthcare Conflict Management.”  These proposed “Four Cornerstones” are: 

1. Support health care conflict management information technology
2. Provide quality information about health care related conflicts and the cost of medical malpractice insurance and claims 
3. Provide financial information and metrics to drive early, cost-effective resolution of claims and potential claims and reduce unnecessary litigation expense 
4. Promote quality and efficiency of claims, legal and conflict management services to reduce the overall cost of medical malpractice insurance and health insurance and reward the lawyers and mediators who help healthcare providers to achieve these goals.    

What is the alternative to a companion “Four Cornerstones of Value-Driven Healthcare Conflict Management?”  A medical malpractice litigation system that holds physicians accountable for failing to meet the appropriate “standard of care” while encouraging them to use EMRs that have “NO standards.” 

For EMR systems to work as envisioned by President Obama, we are going to need data standards and process standards that tie into the clinical standards, healthcare administration, banking and reimbursement standards, data privacy standards (e.g. HIPAA) and the standards that must be evolved for resolving healthcare related disputes.  Without such standards, every baby delivery represents the potential for a  multi-million dollar jury verdict that further plunges our healthcare system into financial ruin.  And, EMRs will only make these cases easier for a plaintiff’s attorney to prove medical malpractice (i.e., the failure to meet the appropriate “standard of care”) unless they are fully integrated with a paper-based document management and conflict management system.    

We have become all too familiar with the concepts of Managed Health Care and Health Management Organizations (HMO’s).  When are we going to have Managed Legal Care and Lawyer Management Organizations (LMO’s)?  The time has come! 

We need to avoid the jury system wherever it makes sense to do.  This can be accomplished by streamlining claim and legal processes in a way that promotes resolution through Alternative Dispute Resolution (especially Arbitration preceded by Mediation), reduces the cost of conflict resolution and promotes relationships between the patient and  provider and among the various providers involved in the patient’s care. 

Doctors and patients who are concerned about the quality of health care and minimizing medical errors and the exorbitant costs associated with medical errors (especially the cost of medical malpractice insurance and the cost of practicing defensive medicine) should be looking for insurance programs that streamline health care and claim/ legal processes in a way that enhances quality and reduces the cost of resolving conflict.    

Typically, medical malpractice defense lawyers get paid by the hour, without consideration of the quality of the result achieved.  Therefore, the lawyer who achieves an early, cost-effective resolution of a dispute loses tens of thousands of dollars that can be generated through a long and costly discovery, pre-trial and trial process.  Just like physicians, lawyers need a financial model that rewards them for achieving excellent results with a focus on quality, efficiency and client satisfaction. 

As an attorney, myself, I call on health care professionals to "Wake Up" and start taking control over their destinies, beginning with a critical examination of their planned EMR implementation and a dialogue focused on creating solutions that promote: 1.  better management of patient expectations;  2.  better communication with patients and providers (including hospitals, nursing homes, physicians and allied health providers such as nurses); 3. early identification and correction of medical errors;  4. early identification and resolution of medical malpractice claims; and 5. medical malpractice insurance programs that provide financial incentives for good EMR-focused risk reduction programs.    

We have the technology to do wonderful things in healthcare and reform the healthcare system entirely through exciting and innovative technology. We also have the technology to do wonderful things in insurance and legal care and reform the process of healthcare conflict management through exciting and innovative technology.  Without careful coordination of these technologies and practical standards that enable these technologies to share data and DOCUMENTS,  the costs of EMR systems will far outweigh their benefits. 

Matthew Radin,  Conflict Management Attorney and Mediator

The Wall Street Journal
Submitted by:
Samuel R. Bierstock, MD, BSEE
Founder & President, Champions in Healthcare, LLC www.championsinhealthcare.com
Former Chief Medical Officer, IBM Inc./ Healthlink, Inc.

 Electronic Medical Records A Great Idea That May Well Do Away With the Doctors Who Use Them

The President has announced his goal to digitalize our nation’s medical record system. If achieved, this wonderful and lofty notion would certainly reduce medical errors, increase the quality of care delivered, bring consistency of care to our citizens, reduce costs associated with delivering health care, and quite possibly drive the physicians who are supposed to use them out of business.

The buzzards are already beginning to circle.

Physicians and nurses are the most pressured of all professionals, with expectations of their performance and its unimaginable responsibilities beyond the comprehension of people who have never made life and death decisions hundreds of times a day. With every decision and action comes the risk of being held liable and losing both their profession and their assets. The very mechanics of using electronic medical records in their current state of development has complicated the lives of many clinicians who use them and have been slow in being adopted for that reason. With luck, that will change.

What few people realize is that using a computer to document every decision, every action, and the assessment of every piece of information that streams to clinicians in real time represents a major change in the way clinicians have to think and work, and an audit trail that has begun the salivation process of every malpractice attorney who has finally realized what is about to be imposed on the medical profession. An electronic medical record system can track how long a doctor looked at a document, if he or she scrolled down to read the entire thing, how long it took a doctor or nurse to respond to an alert or notification of an abnormal result, how long it took for them to answer their email, and the accuracy of their every assessment, thought and action. It can track whether their decisions and actions meet the most recent guidelines or research results in a world where thousands and thousands of new papers and research are published every week.

This may sound wonderful for those receiving care, but how many people reading this article would want to use such a system in their work knowing that their every thought and action could be audited and evaluated by others who make their living suing you for everything you own?

The President’s plan calls for rewarding physicians who purchase and install electronic medical record systems through a series of financial incentives over a period of years.

Mr. President – thanks for the thought and the money, but if you really want to see this work – call off the dogs before the kennel doors open.

Instead of pouring still more money into yet another system in an effort to eliminate its problems, get to the heart of the matter. Reduce liability premiums for physicians and hospitals that install and use electronic medical records. Protect physicians who will have their every move, thought and action auditable at the most granular level. (Personally, I might like to know that I can finish dinner or brush my teeth before responding to a real time alert that someone’s blood sugar was a little high without someone suing me because I took too long to act.) Establish standards of expectation for clinicians who will be working in a world of real time data that is delivered to them as quickly as it is generated. Place limits on what audited user-activity information can be deposed in malpractice litigation, while still providing the opportunity for those who have been victims of genuine malpractice to seek justifiable compensation. There is a middle road wherein standards and expectations of how to practice in a whole new world of real time data can be established and it must be addressed in order to allow those who use electronic medical systems to do their jobs without apprehension and fear.

We have the technology to do wonderful things in healthcare and reform the system entirely through exciting and innovative technology. Most doctors recognize the wonderful benefits that an electronic medical system can bring to the quality of care they deliver, and want to use them. But what we also need is for our physicians and nurses to be able to use these tools without fear of the foxes lurking around the henhouse looking for the tiniest of opportunities to attack. Otherwise what we will end up with is a very expensive and technologically advanced universal electronic medical record system with no doctors who want to use it, and a lot of very rich lawyers.

Sam Bierstock, MD