NEJM: Medical Malpractice Liability in the Age of Electronic Health Records

As I wrote on Nov. 11 at Report of an AMIA special task force on challenges in ethics, safety, best practices, and oversight regarding HIT :

This report may be part of a trend ... It appears that the views on healthcare IT safety, ethics, management practices, etc. appearing on the Healthcare Renewal blog and on my once-controversial academic health IT website "Contemporary Issues in Medical Informatics: Common Examples of Healthcare Information Technology Difficulties" (started in 1999) are now becoming mainstream.

Notable "events" continue to occur rapidly in the literature on clinical IT. Another example of the trend I noted appeared today, this time in the New England Journal of Medicine:

Medical Malpractice Liability in the Age of Electronic Health Records
Sandeep S. Mangalmurti, M.D., J.D., Lindsey Murtagh, J.D., M.P.H., and Michelle M. Mello, J.D., Ph.D.
N Engl J Med 2010; 363:2060-2067 (Nov. 18, 2010)

From the Department of Medicine, New York University Medical Center, New York (S.S.M.); and the Department of Health Policy and Management, Harvard School of Public Health, Boston (L.M., M.M.M.).

The above hyperlink takes you, as of this writing, to full text and an available PDF.

My comments on this article are that:

I am happy to see it appear -- as it shows that critical thinking about HIT has reached the top echelons of the medical literature.

However, the new paper itself appears to wander a bit, and seems to add little to the much more comprehensive article:

"E-Health Hazards: Provider Liability and Electronic Health Record Systems." Sharona Hoffman and Andy Podgurski. Berkeley Technology Law Journal (2010).
Available at: http://www.btlj.org/data/articles/24_4/1523_Hoffman.pdf

(Sharona Hoffman JD is Professor of Law and Bioethics, Co-Director of Law-Medicine Center, Case Western Reserve University School of Law, and Andy Podgurski PhD is Professor of Electrical Engineering and Computer Science, Case Western Reserve University.)

The new article does reference the Hoffman/Posgurski article once at [32].

The new NEJM article also seems to display biases. For instance, it states:

EHR users overwhelmingly report improvement in the quality of care they provide. [29]

Reference [29] is this article:

29. DesRoches CM, Campbell EG, Rao SR, et al. Electronic health records in ambulatory care � a national survey of physicians. N Engl J Med 2008;359:50-60.

From that article:

In late 2007 and early 2008, we conducted a national survey of 2758 [ambulatory care] physicians, which represented a response rate of 62%. Using a definition for electronic health records that was based on expert consensus, we determined the proportion of physicians who were using such records in an office setting and the relationship between adoption and the characteristics of individual physicians and their practices.

... Four percent of physicians reported having an extensive, fully functional electronic records system, and 13% reported having a basic system ... Physicians reported positive effects of these systems on several dimensions of quality of care and high levels of satisfaction ... Physicians who use electronic health records believe such systems improve the quality of care and are generally satisfied with the systems. However, as of early 2008, electronic systems had been adopted by only a small minority of U.S. physicians, who may differ from later adopters of these systems.

I would therefore relate that the blanket statement that "EHR users overwhelmingly report improvement in the quality of care they provide" is overstated.

It might have been more appropriate to write that:

"In one study of ambulatory care physicians, a minority of which at present were using EMR's at various levels of sophistication, users reported improved care."

Also, other literature refuting the premise that physicians report improved care could (should) have been considered, such as (in just one example) the 2008 survey reported upon by the American Association of Physicians and Surgeons (AAPS):

PHYSICIAN ATTITUDES & ADOPTION OF HEALTH INFORMATION TECHNOLOGY (PDF)

I wrote about that survey at this link. (I note that the AAPS is a conservative group; NYU and Harvard tend strongly towards the left; one wonders if the NEJM authors would have considered mentioning the AAPS survey, even if they did know of it.)

More potential biases appear in the conclusion of the new NEJM paper:

... In evaluating whether to invest in EHR technologies, provider organizations must weigh the substantial up-front cost and possible risks against the potentially sizeable, but uncertain, long-run benefits.[55]

[55] DesRoches CM, Campbell EG, Vogeli C, et al. "Electronic health records� limited successes suggest more targeted uses." Health Aff (Millwood) 2010;29:639-46.

From [55]:

... We examined electronic health record adoption in U.S. hospitals and the relationship to quality and efficiency. Across a large number of metrics examined, the relationships were modest at best and generally lacked statistical or clinical significance. However, the presence of clinical decision support was associated with small quality gains. Our findings suggest that to drive substantial gains in quality and efficiency, simply adopting electronic health records is likely to be insufficient. Instead, policies are needed that encourage the use of electronic health records in ways that will lead to improvements in care.

Using [55] as an example of "potentially sizable but uncertain long-run benefits" is not how I would have interpreted the Health Affairs Millwood article.

The NEJM paper authors then write in their conclusion:

... The malpractice implications of EHRs should be included in future discussions of risks and benefits. [Agreed - ed.] Although there is currently little research quantifying the risks and benefits with respect to liability, we are optimistic that they will ultimately weigh in favor of the implementation of EHRs.

They do not state how or why they are optimistic, nor provide corroborating references for that opinion.

Is it revealing of bias and probably not a good practice, as far as I am concerned, to put what appears as wishful thinking -- especially where one states that there is little research supporting the optimism -- in the conclusion of a scientific paper.

In summary, while I feel the paper has a number of flaws, I am glad to see the topic of potential healthcare IT malpractice liability addressed in one of the top journals in medicine.

-- SS

Some answers about new site "EHRevent.org" for health IT and drug adverse event reporting - and a note on incendiaries

Some answers to the questions I raised here and here about a new site EHRevent.org, for reporting of healthcare IT and drug problems, can be found in a blog post at the site of Occam Practice Management at this link: http://www.occampm.com/blog/general/ehr-event-reporting/.

Its author, Michelle R. Wood, had noted this HC Renewal post. She researched some of the questions and wrote up her findings.

It is well worth a read.

I do have a small bone to pick with her post at Occam. She wrote:

"While HC Renewal occasionally borders on the incendiary side of things, Dr Silverstein posed some valid questions about a website that seem to have caught everyone by surprise..."

I maintain that the true incendiaries are fired by those we write about, those whose pronouncements and acts are "threats to health care's core values, especially those stemming from concentration and abuse of power."

Those 'incendiary' pronouncements and acts can indeed maim and kill (for example, as a relative of mine is now experiencing thanks to a commercial EMR 'mishap').

I may be more accurate to say we don't restrict ourselves to the confines of 'political correctness', that is, stunted discourse conventions that generally favor maintenance of the status quo.

As I wrote on that issue last year here in my series on mission hostile healthcare IT:

... Some have complained I am being "politically incorrect." At a time when our banks, major industries, investments, lifestyle and retirements have been seriously eroded by a combination of secrecy, incompetence, and criminal behavior on an unprecedented scale, I think such people need to get their priorities in order.

In his mantra "Critical thinking always, or your patient's dead", cardiothoracic surgeon Victor P. Satinsky, mentioned in earlier posts as my earliest medical mentor, did not include "but be polite about it" as part of the lesson.

On those pesky EMR curmudegons ... (click to enlarge)

-- SS

Addendum 11/17/10:

At the above Occam link Ms. Wood published my brief comment on this issue, and a thoughtful response. See the comment thread of her EHRevent essay.

-- SS

EHRevent: survey amateurism, bias, or something else?

At my post EHRevent.org: Web Site to Collect EHR Safety Reports, I wrote of my questions about a new organization, EHRevent.com, that seems to supercede or compete with the FDA's MAUDE and Medwatch medical device and medication adverse events reporting and analysis services.

Reviewing the EHRevent report form on this day (archived here, PDF), I note the following multiple choice question on page 7 (emphasis mine):

Notwithstanding the event you are reporting, has the adoption and use of an EHR by your practice added to patient safety, improved care or improved documentation? Select one option.

o Yes, definitely

o Likely

o Not sure

o No impact

A bias and/or survey amateurism is clearly evident in this question. And perhaps something more?

Missing is this option:

o None of the above; EHR adoption did not "add to"; rather, it subtracted, as worsening occurred

A fundamental rule of surveys is that the choices should not artificially limit the survey taker's ability to provide critical or relevant information.

As Ross Koppel, PhD, a sociologist studying healthcare IT at the University of Pennsylvania stated at the Feb. 25, 2010 HHS Certification/Adoption Workgroup Meeting on Health IT Safety (minutes of that meeting are archived at this link, PDF):

... Like everyone else, I want HIT to increase patient safety, care efficiency, treatment quality, savings, and drug ordering guidance. I want HIT to provide coherent structures for test results and other data, and I wanted to provide better visualization of complex clinical data.

Unlike many of my colleagues here who are HIT scholars and advocates, however, because of my training perhaps, I�ve studied the surveys that have been used to guide and explain the current HIT strategy.

These surveys explored why doctors and hospitals have not embraced HIT�s benefits. The findings pointed to the cost of HIT, to the physicians� resistance. They called them technophobic, hide bound, and perhaps most gruesome, too old. It also talked about overwhelmed hospital IT staff and other user pathologies or user inadequacies.

Now the years of research on HIT suggested that those answers could not be complete. They weren�t right. The reasons the surveys found this, I�ve been investigated, was I looked at the questions that were asked of the doctors and hospitals. And the only answer options dealt with the problems of hospitals and doctors. In other words, they found only the questions that they asked about physician difficulties, doctor difficulties. They didn�t look for any other options, and they didn�t even give other option answers to talk about the following issues.

So they could have asked, does HIT slow or speed your clinical work? Are EHR data presented in helpful ways, or do they generate unnecessary cognitive burdens because, for example, the data that should be contiguous are in five separate screens, where you�re scrolling across vast wastelands of rows and columns looking for the needed information. How many information displays are understandable or are disarticulated, confusing, or missing key data? Does HIT distract from your patient care or improve it? And the last one I�ll ask, although I have about 50 others, how responsive are HIT vendors to acknowledging and repairing defects? How quickly are these defects repaired?

The absence of the relevant questions divert us from understanding the actual HIT needs of clinicians and patients. Now I�m certain that the people who asked these questions, designed these surveys, were not intentionally deceptive. Well, I�m certain most were not intentionally deceptive. But the restricted options reflects a series of assumptions or � that says HIT is intrinsically beneficial. Anything that encourages HIT is good for patient safety. Anything that discourages it or retards it is bad by definition.

The creators of the EHRevent survey apparently were not present, or not listening, during Dr. Koppel's presentation.

I have not yet reviewed in depth the other survey questions for similar issues, but this one stood out like a sore thumb.



I cannot imagine an objective, competent scientist committing such an error.

-- SS

EHRevent.org: Web Site to Collect EHR Safety Reports

At "Cart before the horse, again" I observed the irrationality of creating "meaningful use" rules for health IT before usability issues (i.e., poor usability) had been robustly addressed, and the further irrationality of the IOM studying HIT safety after HIT became slated for national rollout in the next few years.

The horse seems to be starting to catch up to the cart (or is it the other way around?):

HDM Breaking News, November 15, 2010

The iHealth Alliance, a coalition of industry stakeholders, has launched an electronic health record safety reporting Web site, called EHRevent.org.

The site is designed to be a national system where providers can report safety issues related to the use of EHRs. Reported events will be confidential but used as the basis to generate other reports that medical societies, malpractice insurers and government agencies can use "to help educate providers on the potential challenges that EHR systems may bring," according to the alliance. The Food and Drug Administration will use data collected on the site to assist in evaluating safety issues that may arise during the forthcoming widespread implementation of EHRs.

Initial supporters of EHRevent.org include the American Medical Association and some state medical societies, American Cancer Society, National Patient Safety Foundation, American Pharmacists Association, CentrEast Regional Extension Center in Texas, and EHR vendor eMDs Inc.The PDR Network, which distributes drug labeling information, FDA-issued product safety alerts and other services such as the Physicians' Desk Reference, will operate the network. Participating insurers, medical societies, EHR vendors and other entities will have links to EHRevent.org on their own Web sites. A similar site to report adverse medication events, RxEvent.org, will launch in 30 to 60 days. [Is the FDA outsourcing MedWatch? - ed.]

Federal agency supporters include the Agency for Healthcare Research and Quality, and the Food and Drug Administration. Malpractice carrier supporters include COPIC Insurance Company and The Doctors Company.

From the homepage at http://www.ehrevent.org/:

The EHR Safety Event Reporting Service is a service of PDR Secure�, a Patient Safety Organization (�PSO�).

I have several concerns with this development:

• The site page on Privacy and Security states that "PDR Secure�, a certified Patient Safety Organization, receives oversight and governance from the iHealth Alliance, a not-for-profit organization whose mission is to protect the interests of patients and providers, as healthcare increasingly moves online." However, who's paying for the EHR Safety Event Reporting Service and the salaries of the people involved?
  

• How is it that these watchdog organizations seem to spring out of nowhere, with no opportunity for public comment or involvement before they "hatch?"

• Did Congress or other elected representatives have a role in this development?
  

• Will competitors also "hatch?"
  

• Why doesn't the FDA take on this role instead of simply "using data collected on the site to assist in evaluating safety issues that may arise during the forthcoming widespread implementation of EHRs?" They have the infrastructure and experience (e.g., the Medwatch and MAUDE reporting facilities).

• Will actual reports, de-identified as the the reporter, be available to the public in a searchable database as they are in, say, FDA's MAUDE database? (See posts on MAUDE here and here.) From the EHRevent site:
  

The Privacy and Security page states that "PDR Secure� ... will collect, analyze and report back to healthcare providers and others on trends, recent new developments, and other information designed to reduce the risk of harm in the delivery of health care." The FAQ page states "PDR Secure will ... analyze and make available reports on the type of events, frequency of events, and other statistics as well as recommendations and best practices for using EHR systems. "

Will the actual report text itself be unavailable to the public?

• Re: "A similar site to report adverse medication events, RxEvent.org, will launch in 30 to 60 days." Is FDA abandoning its role in collecting drug AE reports?

Further, from the site's own language:

• What, exactly, will be done with the information? They state: "Reporting EHR events can help improve EHRs, support patient safety, reduce professional liability and help liability carriers and others properly educate physicians on safe use of EHRs." How?

• Is the reporting process really protected? Again, from the site itself:

How broad is the legal protection in this PSO?

Patient Safety Work Product - the information you provide in the reporting form, once it becomes part of the PSO environment - is entitled to greater protection from disclosure in legal matters as part of a new statutory and regulatory framework. PDR Secure�, as a certified and listed Patient Safety Organization under Federal law/regulations, has been designed to afford a reporter with the protections under this law. However, it is important to know that PSOs are relatively new entities that have not been tested in the courts of every jurisdiction. Each person or entity who submits information to PDR Secure� should make their own independent evaluation as to the risks involved in submitting information and what particular information to submit.

Can I submit a report without identifying myself?

You need to provide your identity, which will become part of the PSO database. You can select whether your identity can be shared or is to be kept confidential under the regulations governing the PSO, and PDR Secure�s policies and procedures.

• Will the "contract" one has to agree with, a 16-page document studded with legalese (download here, .doc format), inhibit voluntary EMR-related problem reporting?
  

Even with those questions in mind, I think this may be a net positive development. It would at the very least seem to lay to rest the deterministic notion (and/or marketing message) that this technology is harmless and entirely beneficent.

Will it be an effective way to help reform the health IT industry? Time will tell.

-- SS

Addendum 11/16/10:
See my initial concerns with the EMRevent report form at my followup post here.

Addendum 11/17/10:
Some answers to these questions can be found in a blog post at the site of Occam Practice Management at this link: http://www.occampm.com/blog/general/ehr-event-reporting/, whose author noted this HC Renewal post. My comments are at a post here.

"Living High Life on Money to Treat the Poor"

Here is another story that has developed over the last week about questionable goings on at a not-for-profit health care organization.  The organization in question this time was the not-for-profit, but state government supported Medicaid managed care organization/ health insurer for the Louisville, Kentucky region.  The details came from a Louisville (Kentucky) Courier-Journal article about a state auditor's report on the Passport Health Plan:

The organization providing Medicaid services in Jefferson and surrounding counties has spent lavishly on such things as travel, meals, salaries, bonuses and lobbying in recent years, the state auditor�s office said in a report released Tuesday.

The scathing report, which Gov. Steve Beshear described as 'disheartening,' said two Passport Health Plan officials � Executive Vice President Shannon Turner and Associate Vice President Nici Gaines � were paid well, ate well and traveled extensively.

'Lodgings were often luxury spas and resorts,' the report said. 'The executives used limousine services and dined at expensive restaurants. While these types of expenditures may be routine for many private, for-profit companies, they should not be typical in nonprofit, health care organizations.'

The report also said Passport made extraordinary efforts to burnish its public image and gain political support by spending $1 million since 2007 on lobbying and public relations, as well as $423,000 in donations and sponsorships.

Many of the donations had no connection with health care, the report said � including $600 to sponsor a reception for the Senate Republican majority in 2009, $10,000 to sponsor an 'inflatable character' for the Kentucky Derby Festival's Pegasus Parade, and contributions to the Boy Scouts, Kentucky Opera, Volunteers of America and others.

Here are some more specifics about amounts spent:

Travel: Passport spent $106,722 on more than 36 trips including trips to conferences at resorts in New Orleans, Key West, Las Vegas, Seattle, Philadelphia, Tucson, Washington and Coeur d'Alene, Idaho.
Meals: Spent $72,994 on 753 meals for groups large and small. These were mostly at Louisville restaurants but included tabs at some famous restaurants outside Kentucky, such as Emeril's and Commander's Palace in New Orleans.
Limo services: Five uses of limos totaling $3,996.
Lobbying and public relations: Spent $1 million.
Donations and sponsorships: Spent $423,000, some with no connection to health care, including $10,000 to be an �Inflatable Character Sponsor� for the Kentucky Derby Festival.
Gifts: Spent $9,311 for 95 gifts, which included flowers and Christmas gifts.
Salaries: Paid salary and bonuses of $303,750 to Executive Vice President Shannon Turner and $156, 000 to Associate Vice President Nici Gaines in most recent year.

Here are more specifics about conflicts of interest:

Conflicts of interest: Both Turner and Gaines received additional compensation in contracts with subcontractor they were overseeing, AmeriHealth Mercy. Also, Larry Cook, Passport's chairman and CEO, had divided loyalties because he serves as an executive vice president of U of L. He also was reimbursed $1,717 by AmeriHealth for expenses for a trip to Ireland in 2007.
Grants: Many grants were made by Passport to groups with ties to staff and/or board members

The organization also was charged with distributing additional funds to area health providers based on their initial investment in the not-for-profit managed care organization, but not on the amount of care they were providing to Medicaid patients:

[State Senator Tim] Shaughnessy was particularly concerned about distributions of $10 million in excess funds in late 2008 and again in and 2009 to the large Jefferson County health-care providers that formed Passport.

These distributions were reported to the Kentucky Department of Insurance as grants to cover indigent care costs incurred by Passport's provider partners � University Medical Center, University Physician Associates, Norton Healthcare, Jewish Hospital and St. Mary's Healthcare, and the Louisville/Jefferson County Primary Care Association.

But the auditor�s report said the money was distributed based on the percentage of the providers' initial investments to create Passport � not the amount of indigent care they provided. And the report said this money was placed in the general funds of these providers 'rather than specifically set aside for uncompensated indigent care.'

Finally, it appears that Passport tried to block disclosure of important information, including the compensation of its executives, even though it is a not-for-profit organization entirely funded by the government:

Early this year The Courier-Journal filed a request under the state open records law seeking Passport records on compensation of its executives and minutes of its board meetings. But Passport refused to release them, claiming that the law did not apply.

The attorney general's office disagreed, saying that Passport is 100 percent publicly funded and must release the records. But Passport again refused and took the matter to Jefferson Circuit Court, where it is pending.

So again we have the same tiresome features of leaders who apparently regard their organization as their own personal sandbox: lavish compensation, given the context, luxuries supplied the leadership out of organizational funds, conflicts of interest that apparently increased further the leaders' personal gains, and attempts to keep the whole thing secret. As a Lexington (Kentucky) Herald-Leader editorial ("Living High Life on Money to Treat the Poor") noted, given the mission of the organization, this sort of sleaze is particularly unfortunate:

In one way, though, Passport's profligacy deserves special condemnation. Every dollar Passport executives spent on their own pleasurable pursuits, on lobbying to insure tax money kept flowing their way, on buying goodwill in the Louisville area or on any other unnecessary expense was a dollar taken away from providing Medicaid services to the most vulnerable, needy members of society.

This case resembles one we discussed previously, that of the non-profit community health agency in Florida whose leaders again seemed to regard their job as an opportunity for personal enrichment.  It seems that even leaders of non-profit organizations whose mission is to help the needy may seem to put their own needs before those of their disadvantaged constituents.  Of course, given they may have seen leaders of not-for-profit universities and hospital systems making millions, and leaders of for-profit pharmaceutical, device, and especially managed care organizations/ health insurers making tens of millions, and conclude that their six-figure salaries and occasional luxuries were barely adequate compensation.

As we have noted before, the "executives take all" mentality of an era economically dominated by financiers as aristocrats seems to have infected health care.  Somehow we have to restore the idea that executives and managers  like doctors and nurses, should regard their work as calling meant to put the needs of patients and public health first, rather than a quick way to get rich. 

About to be Bought-Out Non-Profit Hospital System Tries to Hide Executives' Golden Parachutes

A report from FloridaToday (in Brevard County) about the sale of a not-for-profit Florida hospital system to a for-profit corporation raises some interesting questions. The background is that the non-profit Wuesthoff Health System was bought by for-profit Health Management Associates (HMA):

HMA, a for-profit hospital management company in Naples, bought the not-for-profit Wuesthoff Oct. 1 for $145 million. Wuesthoff lawyer William Kopit has said it was forced to sell because the hospital system lacked the capital to compete.

The question is about the conditions of the sale:

A foundation formed to manage the proceeds of the sale and continue providing indigent health care has refused to disclose the executive packages to the state, claiming it constitutes a trade-secret exemption under Florida law.

This was despite the state Attorney General's authority to oversee sales of charitable non-profit organizations to for-profit entities:

Under its statutory obligation to oversee charities registered in the state, the Attorney General's Office requested the executive pay information from Wuesthoff, Wiggins said. Wuesthoff's lawyers submitted 40 pages of heavily redacted material. Negotiations led to Wuesthoff agreeing to redact only the names and compensation details of the executives.

The materials submitted suggested a lot of executives getting golden parachutes, but not the amounts or conditions involved:

The unredacted portions show as many as eight former executives receiving three years of salary paid out over 12 months, a pay-to-stay retention bonus for continuing to work for the company during sale discussions, a senior executive retirement package and regular retirement pay and extended health benefits. Based on Wuesthoff's tax returns, those payouts will be in the millions.

So, legal action will ensue:

'Therefore we will look to the court for guidance and abide by any judicial ruling on the public record and trade secret issues,' said Ryan Wiggins, communications director for the attorney general.

The notion that how much a for-profit corporation will pay in golden parachutes to former executives of a not-for-profit hospital system is a "trade secret" just boggles the mind.  What could a competitor possibly gain from this information that could lead to specific action that would disadvantage Wuesthoff?

On the other hand, it might be that the size of these golden parachutes, if revealed, would lead to some raised eyebrows, or worse.  Consider first the contrast between payments made and to be made to fortunate executives and the performance of the health care system. 

Note that what is available on the public record (via the hospital system's latest available, that is, 2008 form 990 disclosures to the US Internal Revenue Service) suggests that in the past, Wuesthoff executives were already quite well-paid. On that form we found the following total compensation reported:
Emil Miller, President: $927,543 ($523,069. compensation; $342,130, benefits; $62,344, benefits)
Brian Bodi, Controller: $184,789
George Fayer, CFO: $439,580
Johnette Gindling, Senior Vice President: $236,975
Marchita Marino, Senior Vice President: $264,529

Nearly a million dollars was a lot of compensation for the CEO of a small, non-profit hospital system in 2007.  Although there is no easily publicly available information about executive compensation since 2007 (the year covered by the 2008 report noted above), these high rates of compensation were paid by a hospital system that now apparently has so little capital that it no longer can "compete" without being bought by a for-profit corporation.   Now the executives who could not amass a competitive amount of capital will amass quite a sizable amount of personal riches.

Consider second the contrast between the extraordinary assertion that these golden parachutes should remain secret, and the hospital system's stated interest in "transparency," or its stated devotion to "five core values that drive our hospital and its mission: integrity, courtesy, compassion, competence and stewardship." It seems that preventing embarrassment about executive enrichment may trump transparency and integrity.

Health care, probably infected by the finance industry that brought us the global financial collapse, aka "great recession," seems to have been overcome by "compensation madness."  A central value of many health care organizations seems to be enriching their top leaders/ managers/ executives, no matter what the financial condition of the organization, or the performance of the leaders in terms of fulfilling the organization's mission.  From these perverse incentives, the perverse incentives favoring short-term financial performance over patient care seem to have sprung.  As Prof Mintzberg wrote, "All this compensation madness is not about markets or talents or incentives, but rather about insiders hijacking established institutions for their personal benefit."

If we truly want health reform that addresses spiraling costs, declining access, and threatened quality of care, we need to give health care practitioners and leaders positive incentives for being caring, competent, well-informed, and honest, not for clever financial manipulation and short-term profits, or just for managing to show up for work.

ADDENDUM (2 December, 2010) - 4 days after the above post, Florida Today reported that details about the golden parachutes were released:

[Emil] Miller, who ran Wuesthoff for more than a decade, received $6.25 million total. Of that, $2.2 million was severance pay and $3.2 million was retirement pay. The balance was the cost of his employee benefits.

Former CFO George Fayer has the next highest exit pay at $973,000, which includes a $171,000 for staying through the sale and transition. Fayer is a consultant to the foundation, Gindling said.

Chantal LeConte, who ran the Rockledge hospital, received the third highest payout, $553,000. LeConte's package included about $138,000 for staying through the transition.

Given that the health system was merged out of existence because it supposedly no longer had enough capital to "compete," now we see why system leaders were so reluctant to reveal the amounts.

Report of an AMIA special task force on challenges in ethics, safety, best practices, and oversight regarding HIT

I am both surprised and pleased to read the new report of an American Medical Informatics Association (AMIA) task force, in the form of an AMIA Board Position Paper released today entitled:

"Challenges in ethics, safety, best practices, and oversight regarding HIT vendors, their customers, and patients: a report of an AMIA special task force." Goodman, Berner, Dente, Kaplan, Koppel et al. for the AMIA Board of Directors. J Am Med Inform Assoc (2010). doi:10.1136/jamia.2010.008946.

A free PDF is available at this link.

This report may be part of a trend. As I wrote recently at this link:

I was somewhat taken aback by the appearance of the article by Karsh et al. entitled "Health information technology: fallacies and sober realities" (covered at Healthcare Renewal here) in the Oct. 2010 Journal of the American Medical Informatics Association (JAMIA).

I was taken aback since the article rains heavily on the academic memes of healthcare IT as a benign and deterministic solution to healthcare's ills, and of health IT-related adverse outcomes being mere "anecdotes."

It appears that the views on healthcare IT safety, ethics, management practices, etc. appearing on the Healthcare Renewal blog and on my once-controversial academic health IT website "Contemporary Issues in Medical Informatics: Common Examples of Healthcare Information Technology Difficulties" (started in 1999) are now becoming mainstream.

Most of the issues in this new AMIA Position Paper have been written about at this blog since 2004, and at my aforementioned academic HIT website since 1999. I will reproduce the abstract of the paper below, but download and read the entire paper (emphases mine):

ABSTRACT
The current commercial health information technology (HIT) arena encompasses a number of competing firms that provide electronic health applications to hospitals, clinical practices, and other healthcare-related entities. Such applications collect, store, and analyze patient information. Some vendors incorporate contract language whereby purchasers of HIT systems, such as hospitals and clinics, must indemnify vendors for malpractice or personal injury claims, even if those events are not caused or fostered by the purchasers. Some vendors require contract clauses that force HIT system purchasers to adopt vendor-defined policies that prevent the disclosure of errors, bugs, design flaws, and other HIT-software-related hazards. [The "gag clauses." These are exceptionally unethical, in my view, regarding the use of an experimental technology, healthcare IT, on unsuspecting, unconsented patients unaware of health IT risks - ed.] To address this issue, the AMIA Board of Directors appointed a Task Force to provide an analysis and insights. Task Force findings and recommendations include: patient safety should trump all other values [I've been writing and saying this for many years now - ed.]; corporate concerns about liability and intellectual property ownership may be valid but should not over-ride all other considerations; transparency and a commitment to patient safety should govern vendor contracts; institutions are duty-bound to provide ethics education to purchasers and users, and should commit publicly to standards of corporate conduct; and vendors, system purchasers, and users should encourage and assist in each others� efforts to adopt best practices. Finally, the HIT community should re-examine whether and how regulation of electronic health applications could foster improved care, public health, and patient safety. [Regulation has been another issue I have focused upon, especially after holding a management role in Big Pharma - ed.]

Also notable was this proclamation:

... �Hold harmless� clauses in contracts between Electronic Health Application vendors and purchasers or clinical users, if and when they absolve the vendors of responsibility for errors or defects in their software, are unethical. [I note that, somewhat remarkably, this is not the more typical hedged academic "may be unethical" statement- ed.] Some of these clauses have stated in the past that HIT vendors are not responsible for errors or defects, even after vendors have been informed of problems.

Unethical, indeed, as per my JAMA letter of July 22, 2009 on that issue entitled "Health Care Information Technology, Hospital Responsibilities, and Joint Commission Standards" (link) and per my more detailed essay at my Drexel HIT website (link).

Also remarkable were these statements:

... For-profit manufacturers of healthcare products are bound by values which may at times conflict. For instance, as entities in a marketplace, they are duty-bound to provide a financial return to those investors who have contributed resources in anticipation of their success. Yet, as developers and manufacturers of products that affect the health of people, they are no less obligated to ensure, to the extent possible, that their products are safe and effective, and beneficially support patients [that goes without saying - ed.] and those who treat and care for them. [That is, clinicians, who through their unpaid hard work using oft ill-designed HIT systems are currently used as beta testers and, through 'hold harmless' clauses, as an insurance company and, quite frankly, as cannon fodder - ed.]

... Contracts should require that system defects, software deficiencies, and implementation practices that threaten patient safety should be reported, and information about them be made available to others, as appropriate. Vendors and their customers, including users, should report and make available salient information about threats to patient safety [I've also been writing this for years; it's common sense - ed.] resulting from software deficiencies, implementation errors, and other causes. This should be done in a way easily accessible to customers and to potential customers. This information, when provided to customers, should be coupled with applicable suggested fixes, and should not be used to penalize those making the information available. [There should be as little fear of reporting HIT problems as in reporting medication problems - ed.]

... If appropriate for their size and mission, vendors and client institutions contribute to the growth of biomedical knowledge by conducting HIT research [including research on how to remediate the HIT itself and the IT industry creeds, customs and traditions that cause suboptimal design and implementation in the first place - ed.] � authors of scientific reports should not be prevented from identifying devices, tools, and systems by name in publications.

� There are situations in which HIT vendors pursue joint marketing agreements with institutions that adopt vendors� products and by which these institutions become a part of the vendors� marketing program [I believe that hospitals should never allow themselves to become IT marketing and promotion operations - ed.], often in exchange for discounts, payments, stock options, or favorable treatment by the vendor. In at least some cases, these agreements include provisions whereby healthcare institutions that serve as demonstration sites for particular products receive compensation when other institutions adopt products from the same vendor. The Task Force notes that such agreements might place the �referring� institutions in a conflict of interest [a common topic on this blog -ed.], and therefore recommends that:

• Any such conflicts should be eliminated or managed, including disclosure, according to current standards.

• Where such agreements are made, they should include a provision whereby any payment or other compensation contingent on the sale of a system to another party must be disclosed to that other party.

• Payments or gifts to individuals and institutions, including institutional officials, clinicians, etc, should be disclosed. Alternatively, they should be addressed by entities� internal mechanisms for managing conflicts of interest and commitment, perhaps along the lines of the �rebuttable presumption� standard endorsed by the Association of American Medical Colleges. The goal of the standard is �to ensure that institutions systematically review any financial interest that might give rise to the perception of a conflict of interest, and further, that they limit the conduct of human subjects research by financially interested individuals to those situations in which the circumstances are compelling.

The new AMIA Position Paper and the aforementioned paper on HIT fallacies and realities seem to reflect a welcome transformation or even about-face for AMIA. I am likely considered "radioactive" by some in that organization for espousing similar views dating back to the late 1990's, when expression of such views was uncommon and even frowned upon. Academia has not been highly tolerant of heterodoxy in many domains for quite some time.

One wonders if that stigma will "stick" in view of the increasing realization that such views were not heretical, but forward-thinking along the lines of my early medical mentor, the late Victor P. Satinsky, MD of Hahnemann Medical College and Hospital:

From http://www.upenn.edu/gazette/0298/0298obits.html: Dr. Victor P. Satinsky, C'34, Philadelphia, a cardiovascular surgeon at the old Hahnemann Hospital who helped develop coronary-bypass surgery; September 7 [1997]. He is also credited with 30 major medical innovations and the invention of the Satinsky clamp, now a standard instrument in cardiovascular surgery. He joined Hahnemann (now part of the Allegheny health system [as of 2010 now Drexel College of Medicine - ed.]) in 1946 to do thoracic-surgical research, and from 1961 till his retirement in 1977 he was the research director of its cardiovascular institute. Dr. Satinsky liked to refer to himself on promotional materials as 'the Renaissance Doctor', as he was also a poet, a playwright (some of his plays were produced in London), a painter, a clarinetist, and a fencer; he was known at Hahnemann for practicing his swordsmanship in the halls and classrooms of the hospital. And at the age of 80, he earned a black belt in aikido, and subsequently taught it. Although he had no religious training, during the Second World War he once filled in as a rabbi on a troopship going to Europe when he learned it had chaplains, but no rabbi. He also had taught himself psychiatry and while at Hahnemann developed educational programs for young people; the first, for gifted high-school students, began in 1961. He later added programs for disadvantaged youth, for young people with emotional problems, and one for college dropouts. On retiring, he set up the Satinsky Institute for Human Resource Development to continue this work, which he ran until his death at 84 years.

Dr. Satinsky's short, simple and unyielding credo was:

"Critical thinking always, or your patient's dead."

-- SS