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