Tech

Coming To a Decision On Decision-Support Technology

Jaan SidorovFor more than a decade, a running joke among electronic health (EHR) record skeptics has been that its clunky “decision support” functions, defined as the on-screen provision of clinical knowledge and patient information that helps physicians enhance patient care , is condemned to always remain an innovation of the future.  Yet, while published studies like this continue to fuel doubt about the prime-time readiness of this EHR-based technology, a growing body of clinical research suggests that the science is getting better.  Jonathan Cohn, writing in The Atlantic, points out that IBM’s Watson has achieved enough of a level of sophistication to warrant clinical trials at prestigious institutions such as the Cleveland Clinic and Memorial Sloan-Kettering.

Unfortunately, there is an under-recognized threat to EHR-based decision support: the dysfunctional U.S. tort system.

The experience of Google’s “driverless car” may be instructive. According to National Public Radio, years of testing is putting this technology within reach of consumers.  Thanks to the prospect of fewer accidents, better transportation options for the disabled, reduced traffic congestion and lower hydrocarbon consumption, some states have responded by attempting to support this promising technology with “enabling legislation.”

Unfortunately, the legislation in some state jurisdictions is being hindered by the prospect of complicated lawsuits.  As physicians know all too well, when a single mishap lands in court, adroit attorneys can use the legal doctrine of joint and several liability  to tap multiple deep pockets to increase the potential size of the award. In the case of driverless cars – in which the owner is more of a passenger than a driver – the accidents that are bound to happen could metastasize upstream from the owner and tie up the driverless automobile manufacturers and all of their business partners in time-consuming and expensive litigation.

Ditto the EHR’s decision support technology. Even with Watson’s intelligence, medicine will remain imperfect and allegations of medical mistakes will be inevitable. When lawsuits arise, the defendant medical providers will likely argue that their judgment was clouded by the very technology that otherwise helped them better serve their other patients. Personal injury lawyers are unlikely to let that theory of liability go unused. Tapping the same kind of lucrative joint-and-several legal theories that have served them so well in decades of standard malpractice litigation, they’ll undoubtedly be happy to name the EHR manufacturer and all of its decision-support business partners in these lawsuits.

Unfortunately, this may be one more reason for EHR vendors and their health technology partners to harden their stance with their notorious “hold harmless” contracting provisions.  Since physicians are learning to push back against these clauses, manufacturers of decision support systems will probably delay product releases until they better understand the risks and embed the anticipated legal costs in their products. In the meantime, gun shy providers will prefer algorithms that combine defensive as well as evidence-based medicine.  As a result, otherwise cost-saving information technology is likely to ironically fuel the nation’s $54 billion “malpractice” tab.

What should happen?

In addition to supporting some or all of the tort reform options outlined here, producers as well as consumers of decision support should support federal and state legislation that provides reasonable safe harbors for this health information technology. Last but not least, physicians, developers and vendors need to collaborate on systems that reconcile defensible local standards of care with national guidelines.

We may be finally reaching a decision support “tipping point.” Health consumers and their providers are far more likely to embrace “Health 2.0” when the “information” in technology and the “meaningful” in use makes diagnoses more accurate, testing more intelligent and treatments more tailored. Unfortunately, without tort reform that protects EHR-based decision support, when physician don their Google glasses to access their patients’ records, all they’re likely to see are a lot of lawyers.

Jaan Sidorov, MD, is a primary care internist with over 20 years of experience in medical professional liability insurance.  The opinions expressed in this article are those of the author, and they do not reflect in any way those of any institutions to which he has been or is affiliated.

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Granpappy YokumPaul GrundyWhatsen WilliamsPerryJordan Recent comment authors
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Paul Grundy
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John William Lambert’s Buckeye gasoline buggy, made in 1891, is considered the first practical gasoline-powered automobile made in the United States. But it took The Federal Aid Road Act of 1916 allocated $75 million for building roads (read recovery act) and Ford to really make the auto the standard of transportation and travel. We are early we are primitive still think of a delivery man deciding in 1906 to re shod the horse daisy or get that thing without a horse yup it was hard to deliver goods with no roads no maps and a pile of junk built in… Read more »

allan
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allan

All this sounds very good and some of it can be helpful, but in total the attitude projected and the predictions all end up with the creation of multiple new expensive bureaucracies that distance the patient from the doctor and create many of the problems we are all hoping to solve. Take note how so many seemingly logical conclusions have turned out to be terribly wrong. Healthcare requires organic development from the bottom up, not the top down. The auto and then the process of mass production was developed from the bottom up. The government gave a push with a… Read more »

Granpappy Yokum
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Granpappy Yokum

Remind me: what year what is that the government mandated everyone own and drive an automobile, or be punished financially?

Jaan Sidorov
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Jaan Sidorov

Perry raises a good point: if the work station interferes with a collaborative doctor-patient relationship, decision support could suffer.

Perry also suggests that the entire tort system is in need of reform. No one can disagree with that reasonable argument, but lacking that, what can be done to increase the chances that the emerging promise of decision support will be fulfilled?

Whatsen Williams
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Whatsen Williams

CDS is a medical device and should undergo robust evaluation by the FDA.

Perry
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Perry

The other problem I hear complained about most often with EHR is lack of patient-physician contact/communicaton. This only serves to widen the gap between patient and physician, which in turn increases the likelihood of a lawsuit if something bad occurs.
Nothing in the whole scheme of trying to control costs, EHR, EBM, etc, will be effective unless the tort system is reformed, not to allow bad docs and institutions to get away with anything, but to allow good, reasonable docs to practice reasonable medicine without constant fear of a lawsuit.
The trial attorneys and most Democrats would have you believe otherwise.

Jaan Sidorov
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Jaan Sidorov

Jordon joins the chorus that that there are less to EHRs than meets the eye. I agree, but I also hope that his disdain for the billing functions of the EHR doesn’t infect the real promise of a wholly different technology – called decision support – that is tethered to the EHR work station

Jordan
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EMR’s are cash registers attached to hard drives. They are built by engineers, not clinicians. I can’t wait for the day when doctors build SDK kits for developers and see what happens. All people want is simplicity, predictability and reliability – and to feel connected to their health team (especially when they are sick and unable to think clearly). When technology understands the nuances of how health, well-being, and existential anxiety permeates the human operating system’s (hOS), we’re likely to hit an inflection point that matters. Every single patient wants the best outcome. Every single doctor wants the best outcome.… Read more »

@BobbyGvegas
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“combining both (human and computer) results in a practically unbeatable combination.”
__

See the Weeds’ “Medicine in Denial.” They make precisely that point.

Jaan Sidorov
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Jaan Sidorov

I’m sympathetic of Joe Flower’s point about badgering docs with recommendations that upset workflows, don’t quite fit the patient’s needs and carry an unsaid threat. That being said, it’s been pointed out that while high end computer chess programs can beat a chess master, combining both (human and computer) results in a practically unbeatable combination. The same could be true for physicians with high end, high performing decision support systems. The best combination of physician and decision support should include the option of letting the human physician/chess master decide on the next diagnostic or therapeutic move without any subliminal threats.… Read more »

allan
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allan

With more and more information greater degrees of liability are created. When the computer suggests something that automatically becomes something that adds to liability whether or not the suggestion is followed. The plaintiff attorney shows in black and white that the computer system thought something else should be done and points to the plaintiff with pity. Alternatively the physician follows what the computer said using the same black and white image and the plaintiff’s attorney says you are the doctor not the computer. If all you do is follow the computer’s advice then why do we need doctors? All these… Read more »

Jaan Sidorov
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Jaan Sidorov

Rob is naturally correct: our legal atmosphere could strangle the promising technology of high performing decision support in the crib. Vik – with whom I often disagree – finally makes a good point, this time about safe harbors, but that’s an all-or-none approach. If, in the name of a greater societal good, “enabling legislation” protects the emerging technology of Google cars, why can’t the same be considered for decision support? Isn’t there a template in there somewhere where reasonable persons can agree? allan is understandably upset about the dysfunctions of a tort system and EHR system, raising a point that… Read more »

Joe Flower
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I can imagine many doctors would say, “Fine, give me information, give me options. Don’t tell me what to do. And that means don’t give me recommendations, since in this legal climate any recommendation is inherently coercive.”

Joe Flower
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Good post, good comments — and there is a deeper problem, which Rob hints at. I’ll use computerized mammogram reading support as an example. Studies have shown that statistically speaking, we can’t point to a single extra tumor found, a single life saved by this new technology. What we can see is a lot of false positives, a lot of unnecessarily worried women, a lot of call-backs, a lot of unnecessary biopsies. The computer flags certain cloudy shapes as possible tumors. The experienced physician examining the scan may say, “Nah. No chance.” But he or she is more or less… Read more »

@BobbyGvegas
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“As physicians know all too well, when a single mishap lands in court, adroit attorneys can use the legal doctrine of joint and several liability to tap multiple deep pockets to increase the potential size of the award. ” __ I started my white collar career in a forensic level environmental radiation lab in Oak Ridge (radionuclide dose and exposure analytics for litigation support). “Joint and Several,” yeah. If you caused 1% of the contamination relative to the contributions of other participating entities, but have 99% of the money, guess what? There was no “hold harmless” in that arena —… Read more »

allan
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allan

The tort system is dysfunctional and now we have added a dysfunctional record keeping system, the EHR. The dysfunction is more than additive. We also have ObamaCare with its push for brainless physicians that are incentivized not to think or innovate. I hate to think of what medical care will be like in another decade or so. The only bright spot is medical technology that blunts some of the negative effects of undesirable government intervention.

Vik Khanna
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Vik Khanna

The tort system is clearly dysfunctional, but I don’t see it being made more functional by creating a separate safe harbor for EHR/decision support technologies. That perpetuates our unsuccessful policy making template of “pick me, pick me!,” which asks legislators to choose a side, generally the one that’s been most useful for campaign fund raising. But, the issues raised in this post — and the comments — are important. Maybe the push towards EHR/decision support technologies can serve as a tipping for fixing a tort system that is badly in need of repair so that injured patients are properly compensated… Read more »

Rob
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Here’s the big irony of this: most docs feel like EHR gets in the way with our ability to give quality care. It’s not the computer itself, it’s the tasks of note/code generation and data collection for which the EHR is designed which take the time away from the patient and toward the record. Despite this, the EHR manufacturers are not held responsible for the non-care created by the wasted time. I don’t think they should be, but it is definitely ironic in light of this post, in which EHR vendors are worried about the legal implication of offering something… Read more »