For 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.