healthy4u: Abington Memorial Hospital

Quality and Safety Implications of Emergency Department Information Systems: ED EHR Systems Pose Serious Concerns, Report Says

A report "Quality and Safety Implications of Emergency Department Information Systems" appeared in the Oct. 2013 issue of "Annals of Emergency Medicine."  It is available fulltext at <a href="http://www.annemergmed.com/article/S0196-0644%2813%2900506-4/fulltext">http://www.annemergmed.com/article/S0196-0644%2813%2900506-4/fulltext</a>, or in PDF via the tab, free as of this writing. First, a preamble:  I once tried to alert a hospital where I'd trained decades before, Abington Memorial Hospital (<a href="http://www.amh.org/">http://www.amh.org/</a>), of impediments to safe care I'd noted in their EHR's, predominantly their ED EHR.  They did not listen.  In fact, their response to my concerns was characterized by an apparent incompetence regarding conduct of safety investigations.  For instance, to my written concern in an April 2010 letter to the CEO and CMO about the ED EHR that: <blockquote class="tr_bq"> ... I've also had to stop administration [to my mother] of an antibiotic (Levaquin) in the recent past in the ED that she has had an adverse reaction to (torn rotator cuff), despite my having told ED intake she was allergic to it. She relates that administration of Levaquin was then almost repeated on the floor until she herself refused it during that past admission.</blockquote> This was the sworn testimony in May 2013 about the "investigation" that resulted, from the hospital's VP of Risk Management, <a href="http://www.corporationwiki.com/Pennsylvania/Abington/regina-sturgis/81813980.aspx">Regina Sturgis</a>: <blockquote class="tr_bq">A:      Deborah [hospital General Counsel] asked me to investigate the Levaquin issue which I did. Q:      Did you do that on your own or did you delegate some of the -- A:      No.  I did it on my own. Q:      Do you know whether any of the IT folks were ever brought in to look at the -- the EMR issues referenced in this letter? A:     No, I do not.  I know that I was asked to look at the Levaquin because of my clinical background. Q:      Okay.  Did you come up with any conclusions? A:      Yes. Q:      What was your conclusion? A:      That she had been ordered Levaquin in the ETC [Emergency Trauma Center a.k.a. ED], that it had been discontinued about a very short period of time later, under a half an hour, and that she never received it. </blockquote> So, the investigation of a complaint that family and then the patient themselves had to stop the administration of a drug whose staff and EHR had been informed of an allergy consisted of confirming that the medication was never given.  No problem, the ED EHR is safe. (I am not joking; that is the testimony given.  Imagine such an investigation and conclusion about, say, reported aircraft flaws, or, in the industry in which I was once a safety officer, public transit vehicle defects and dangers.) However, when competent people investigate similar issues, the findings are concerning.  From Modern Healthcare (<a href="http://www.modernhealthcare.com/">http://www.modernhealthcare.com/</a>), a publication for healthcare executives, on the new Annals of Emergency Medicine article: <blockquote class="tr_bq"><a href="http://www.modernhealthcare.com/article/20130624/NEWS/306249952/">ED EHR systems pose serious concerns, report says</a> By <a href="mailto:jconn@modernhealthcare.com" target="_blank">Joseph Conn</a> Modern Healthcare <div>June 24, 2013</div></blockquote><blockquote>Electronic health-record systems used in <a href="http://www.modernhealthcare.com/section/articles?tagID=5739" target="_blank">emergency</a> departments are beset with poor data displays, loaded with so many alerts warning of potential <a href="http://www.modernhealthcare.com/section/articles?tagID=51" target="_blank">patient-safety issues</a> that they can lead to user alert fatigue, and may be generating incorrect physician orders, according to a report by two emergency physicians' study groups. Meanwhile, providers wanting to address these <a href="http://www.modernhealthcare.com/section/articles?tagID=975" target="_blank">EHR</a> issues are hampered by a lack of research and solid evidence of the extent of the problem with these systems, and by contract provisions with EHR vendors that stymie the free flow of information about system-linked safety concerns, the report authors say. </blockquote> So, ED's across the country are rolling out technology, often taking advantage of ARRA's HITECH incentives ... but there is a lack of research and solid evidence into the risks.  Allow me to opine - that's simply crazy. <blockquote class="tr_bq">The groups found that “poor data display is a serious problem with many of today's EDISs,” while “the sheer volume” of alerts that range from the “completely irrelevant to life threatening” [or lack of appropriate alerts to relevant, simple issues such as data input errors - ed.] can “dull the senses, leading to a failure to react to a truly important warning.” They also found that “an alarming number of clinicians are anecdotally reporting a substantial increase in the incidence of wrong order/wrong patient errors while using the computerized physician order entry component of information systems.”</blockquote> The word "anecdote", as I have written, is being misused.  The reports are not "anecdotes."  They are risk management-relevant incident reports.  (See "From a Senior Clinician Down Under: Anecdotes and Medicine, We are Actually Talking About Two Different Things" at <a href="http://hcrenewal.blogspot.com/2011/08/from-senior-clinician-down-under.html">http://hcrenewal.blogspot.com/2011/08/from-senior-clinician-down-under.html</a>.) <blockquote class="tr_bq">Two study groups from the American College of Emergency Physicians have recommended a program of systemic vigilance over electronic health-record systems used in emergency departments to improve patient safety and enhance quality of care. ACEP workgroups on informatics and on quality improvement and patient safety published their findings in an article, “<a href="http://www.annemergmed.com/article/S0196-0644%2813%2900506-4/abstract" target="_blank">Quality and Safety Implications of Emergency Department Information Systems</a>,” in the current issue of the Annals of Emergency Medicine. </blockquote> Post marketing surveillance, a standard for decades in other healthcare sectors, has been absent from health IT due to a long-obsolete special regulatory accommodation afforded that industry.  This accommodation was initiated when systems were simple and merely advisory - not the comprehensive enterprise clinical resource and clinician command-and-control systems they are today.  Now, clinician investigators of the technology such as the authors of this study are realizing that continuing this accommodation is a mistake. <blockquote class="tr_bq">It follows in the wake of, and references, an Institute of Medicine report from 2011, “Health IT and Patient Safety: Building Safer Systems for Better Care.” That report concluded that “current market forces are not adequately addressing the potential risks associated with the use of health IT.” It also comes eight months after the New England Journal of Medicine published “<a href="http://www.nejm.org/doi/full/10.1056/NEJMsb1205420" target="_blank">Electronic Health Records and National Patient-Safety Goals</a>,” which warned that recent evidence “has highlighted substantial and often unexpected risks resulting from the use of EHRs and other forms of health information technology.”</blockquote> I note that if you frequent this blog, you likely read material similar to the bolded red statements above here first, as authored by me, dating to the founding of this blog in 2004. <blockquote class="tr_bq">... “The rush to capitalize on the huge federal investment of $30 billion for the adoption of electronic medical records led to some unfortunate and unintended consequences, particularly in the unique emergency department environment,” said Dr. Heather L. Farley, the lead author of the report, in a news release. “The irreversible drive toward EDIS implementation should be accompanied by a constant focus on improvement and hazard prevention." Farley is assistant chairwoman of the Department of Emergency Medicine at Christiana Care Health System in Newark, Del.</blockquote> Ironically, I note in Dr. Farley's statement some of my own advice, given to ED staff when I was Chief Medical Informatics Officer at Christiana Care 1996-8.   I had in that time period advised <a href="http://www.christianacare.org/bodymod.cfm?id=169&action=detail&ref=1909">Charles Reese IV, MD</a>, Chair of Emergency Medicine, to not implement EHRs or, at best, implement document imaging systems (since ED charts are not that long or complex), not full field-based EHRs, due to the "unfortunate and unintended consequences" of bad health IT in such an environment I recognized even then.  It was only a few years ago that my advice was finally overturned. <blockquote class="tr_bq">The authors also report “(t)here are few consistent data on how commonly these errors occur, and few studies are actually focused on collecting evidence of these errors.” Meanwhile, “there is currently no mechanism in place to systematically allow, let alone encourage, users to provide feedback about ongoing safety issues or concerns” with EHRs in general, and EDISs specifically.</blockquote> On its face, that is not a safety-conscious environment and the rollout and use of such systems seems a fundamental violation of patient's rights, made worse by the fact that there is no informed consent process whatsoever to ED EHR use. <blockquote class="tr_bq">The workgroups came up with seven recommendations: appointing an emergency department “clinician champion,” creating within healthcare delivery organizations an EDIS performance improvement group and an ongoing review process, paying timely attention to EDIS-related patient-safety issues raised by the review process, disseminating to the public lessons learned from performance improvement efforts, distributing vendors' product updates in a timely manner to all EDIS users and removing the “hold harmless” and “learned intermediary clauses” from vendor contracts. </blockquote> Many of these issues have been discussed on this blog. <blockquote class="tr_bq">“The learned intermediary doctrine implies that the end users (clinicians) are the medical experts and should be able to detect and overcome any fallibility or contributing factor of the product,” the authors said.</blockquote> I have also pointed out the absurdity of such a "doctors are clairvoyant" attitude, e.g., at my 2011 post on basic common sense on IT adverse consequences at <a href="http://hcrenewal.blogspot.com/2011/04/common-sense-on-side-effects-lacking-in.html">http://hcrenewal.blogspot.com/2011/04/common-sense-on-side-effects-lacking-in.html</a>. <blockquote class="tr_bq">They conclude that the “lack of accountability for vendors through hold harmless clauses and the shifting of liability to the clinicians through the learned intermediary doctrine are significant and additional impairments to safety improvement. Electronic health records and EDISs are sufficiently complex that the physician and other users cannot be expected to anticipate unpredictable errors.” </blockquote> That aligns with the work of Dr. Jon Patrick in Sydney, whose treatise "A study of an Enterprise Health information System" on the Cerner FirstNet ED EHR is available here: <a href="http://sydney.edu.au/engineering/it/~hitru/index.php?option=com_content&task=view&id=91&Itemid=146">http://sydney.edu.au/engineering/it/~hitru/index.php?option=com_content&task=view&id=91&Itemid=146</a> <blockquote class="tr_bq">Earlier this month, the Electronic Health Record Association, an EHR developers trade group affiliated with the Chicago-based Healthcare Information and Management Systems Society, announced the launch of a voluntary “<a href="http://www.modernhealthcare.com/article/20130611/NEWS/306119952/ehr-trade-group-issues-code-of-conduct-to-improve-patient-safety" target="_blank">code of conduct</a>” in which adherents would agree to drop “gag clauses” in the contracts with their provider customers. </blockquote> Great.  Per the wonderful 2007 article "The Denialists' Deck of Cards: An Illustrated Taxonomy of Rhetoric Used to Frustrate Consumer Protection Efforts" by Chris Jay Hoofnagle, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962462">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962462</a>, as of this writing free: <blockquote class="tr_bq"> ... At this point [of losing the argument], the denialist must propose "self regulation" to deal with the problem that doesn't exist. The cool thing about self regulation is that it cannot be enforced, and once the non-existent problem blows over, the denialist can simply scrap it! [20] [20] In the runup to passage of bank privacy legislation, data brokers created a group called the "Individual Reference Services Group" that promptly disappeared after the legislation passed.</blockquote> ("Denialism" is the use of rhetorical techniques and predictable tactics to erect barriers to debate and consideration of any type of reform, regardless of the facts.) IMO 'self regulation' of healthcare is, on its face, a deception.  There are simply too many conflicts of interest. On use of "integrated" big systems: <blockquote class="tr_bq">“These systems do have glitches [indeed - see <a href="http://hcrenewal.blogspot.com/search/label/glitch">http://hcrenewal.blogspot.com/search/label/glitch</a> - ed], but it can be plain and simple bad design that can lead to clinical errors,” Cozzens said.  But ED physicians, he said, are “having the enterprise systems forced upon them. To think you can take one system and adapt it to those different environments is totally wrong. That's why you see low physician satisfaction and the productivity is going down, all for the sacrifice of having an integrated system.”</blockquote> In fact, so-called "best of breed" systems can be bad health IT as well.  See the aforementioned evaluation by Dr. Patrick in Australia. <blockquote class="tr_bq">Bad Health IT ("BHIT") is defined as IT that is ill-suited to purpose, hard to use, hard to customize, unreliable, loses data or provides incorrect data, causes cognitive overload, slows rather than facilitates users, lacks appropriate alerts, creates the need for hypervigilance (i.e., towards avoiding IT-related mishaps) that increases stress, is lacking in security, compromises patient privacy or otherwise demonstrates suboptimal design and/or implementation.  </blockquote> Through my own work, I've seen bad health IT result in patient harm and death.  It's just unfortunate that I got started in this line of work by being, in effect, shot out of a cannon.  That is, my own mother was a victim. -- SS Addendum 10/8/13: From the article: <blockquote class="tr_bq">End-User Recommendation 4: EDIS-related patient safety concerns identified by the review process should be addressed in a timely manner by ED providers, the EDIS vendors, and hospital administration. Each of these processes should be performed in full transparency, specifically with openness, communication, and accountability. </blockquote> I'm not sure the aforementioned levaquin near-accident "investigation" meets these standards. -- SS

Quality and Safety Implications of Emergency Department Information Systems: ED EHR Systems Pose Serious Concerns, Report Says

A report "Quality and Safety Implications of Emergency Department Information Systems"appeared in the Oct. 2013 issue of "Annals of Emergency Medicine." It is available fulltext at http://www.annemer…

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08 Oct 2013

A New And Quite Perverse Hospital Ploy to Defend Medical Malpractice - Blame the Dead Patient? Two Examples

I did not think hospitals would ever get to the level of perversity, in defense of EHRs and EHR-related malpractice, seen herein. Just a few days ago I came across the following article on a web search. It is an astonishing story of a 49 year old man who died in part because an ED physician in a Suffern, NY hospital did not know how to use the EHR that had life saving diagnostic information within, and the hospital attempted to BLAME THE PATIENT for not "explaining his medical history thoroughly enough" to the ED doctor. You read that correctly. Ironically and sickeningly, yesterday my dead mother and I just had something similar done to us by a suburban Philadelphia hospital, Abington Memorial, as below: <blockquote class="tr_bq">Family Awarded $3.4 Million After ER Misses Aneurysm</blockquote><blockquote><a href="http://blogs.lawyers.com/2012/02/family-awarded-3-4-million-after-er-misses-aneurysm/">http://blogs.lawyers.com/2012/02/family-awarded-3-4-million-after-er-misses-aneurysm/</a> Posted February 17, 2012 in Medical Malpractice by writer <a href="http://blogs.lawyers.com/author/kasea/">Aaron Kase</a> It’s gospel in health care– if you have chest pains, get to the emergency room, especially if you have a history of heart problems. But an inexperienced ER doctor in New York thought his patient’s complaints weren’t serious, and sent him home with muscle relaxers. The result was deadly. A Rockland County jury Wednesday awarded $3.4 million to the family of Michael McKenzie, who was discharged from the Good Samaritan Hospital in Suffern in 2007 after complaining of chest pains and other symptoms consistent with a serious heart problem. The hospital determined that McKenzie, 49, was not having a heart attack, then ER doctor Michael Kane diagnosed him with a muscle strain and sent him home with muscle relaxers. Two days later, McKenzie was found dead in his house by his 10-year-old son, killed by an aortic aneurysm. The hospital should have found the aneurysm, argued Anthony DiPietro, the attorney for McKenzie’s family.”They just blew it,” says DiPietro, who headquarters his practice in New York City. “He had textbook signs of an aortic dissection [bleeding into the wall of the main artery that carries blood from the heart]: Chest pain, back pain, shortness of breath, sudden onset, woke him up from sleep, and he wasn’t doing any activities when it happened.” Compounding the hospital’s error, McKenzie had a history of heart problems that should have pointed them toward the correct diagnosis. In 2003, he had been diagnosed with a dilated aortic root, or enlarged artery, with is a huge red flag for a future rupture. Good Samaritan knew about the dilated root because they had noted it in his chart during a heart procedure McKenzie had undergone the year before his death. But the doctor, who had been at the hospital less than a month and was working unsupervised, never knew about McKenzie’s history. Why not? Because he didn’t know how to use the hospital’s electronic medical records system.</blockquote> That's beyond pathetic, but it gets worse.  Far worse: <blockquote class="tr_bq">“He admitted it as part of his deposition,” DiPietro says. “They equivocated. First they said the system wasn’t working [an apparent attempted mistruth - ed.], but then he said he really didn’t know how to use it yet.” According to a local news report, the doctor was certified in obstetrics and gynecology at the time, and didn’t receive his certificate in emergency medicine until the following year. The hospital argued that the aneurysm wasn’t present when McKenzie visited their ER–despite the fact that his certificate of death stated it had been present for days. The hospital also claimed that McKenzie was responsible for his own death because he didn’t explain his medical history thoroughly enough– the same history that was documented in the hospital’s own records. </blockquote> Let me repeat that for emphasis: The - hospital - also - claimed - that - McKenzie - was - responsible - for - his - own - death - because - he - didn’t - explain - his - medical - history - thoroughly  - enough– the - same - history - that - was-  documented - in - the - hospital’s - own - records. A hospital dares blame a likely frightened-out-of-his-wits patient presenting to their ED with chest pain, back pain, shortness of breath, of sudden onset that woke him up from sleep, for his own death?    That, readers, is the most perverse hospital behavior I have ever encountered since entering medicine in 1977 (actually 1972-3 in summer NSF programs at Hahnemann Hospital in Philadelphia). Not to mention, of course, that said patient cannot defend himself, because he's dead and buried... <blockquote class="tr_bq">In fact, in a highly unusual move, the judge in the case allowed doctors to recount conversations they had with McKenzie to the jury, statements usually prohibited under New York’s “Dead Man’s Statute” designed to keep hearsay out of the courtroom.  </blockquote> It's a very special hearsay indeed when the hear-sayers know the patient is in his grave and cannot respond. <blockquote class="tr_bq">The tilted playing field notwithstanding, the jury nevertheless found the hospital negligent and awarded $3.4 million to McKenzie’s widow, two adult daughters and now 14-year-old son. The money couldn’t come soon enough– the widow, now sole provider for her son, recently lost her job and their home went into foreclosure. “Hopefully this will allow them to keep the house,” DiPietro says.</blockquote> The ironically-named hospital planned an appeal: <blockquote>A Good Samaritan spokesperson said the hospital plans to appeal.</blockquote> I will attempt to find if the dockets are publicly accessible. So, to recap, an ED doc didn't know how to use an EHR that contained lifesaving diagnostic information misses an aneurysm, the patient dies, and the defense attempts to blame the patient for his own death for (allegedly) not telling the doctor thoroughly enough about his own medical condition, i.e., the frightened, in-severe-pain patient didn't know medicine but should have - doesn't everyone? ------------------- I could almost not believe this story, thinking maybe it was exaggerated - until just a few days later I EXPERIENCED THE SAME ISSUE MYSELF, PERSONALLY. As substitute plaintiff in the death of my mother in 2011 due to a 2010 medication reconciliation failure at Abington Memorial Hospital, as mentioned on this blog and in the press (e.g., Bloomberg News, <a href="http://www.bloomberg.com/news/2013-06-25/digital-health-records-risks-emerge-as-deaths-blamed-on-systems.html">http://www.bloomberg.com/news/2013-06-25/digital-health-records-risks-emerge-as-deaths-blamed-on-systems.html</a> and Kaiser Health News, <a href="http://www.kaiserhealthnews.org/stories/2013/february/18/scot-silverstein-health-information-technology.aspx">http://www.kaiserhealthnews.org/stories/2013/february/18/scot-silverstein-health-information-technology.aspx</a>), the hospital responded (finally) to the points raised in the Complaint filed in October 2011, after exhausting many procedural delay tactics. The are attempting to blame my mother, who I took to the ED while she was in process of nearly having a stroke, and me as well for her injuries. From their Sept. 9, 2013 filing: <blockquote class="tr_bq">... 41. The injuries allegedly sustained by [substitute] Plaintiffs decedent [my dead mother - ed.] were caused in whole or in part or the same may have been contributed to by the actions of the Plaintiffs decedent [my dead mother - ed.], and accordingly, any claim for damages is barred or the damages recoverable herein must be reduced in accordance with the provisions of the Pennsylvania Comparative Negligence Act, as may be applied to facts disclosed in discovery.</blockquote> They're apparently claiming (quite falsely, as I was there) that my mother, brought to the ED by me with a headache and suffering cerebral ischemia, never advised the doctors and nurses about her heart medication Sotalol (which was in their ED and floor EHR's from prior visits - just as in the aneurysm case above) that they summarily terminated, leading to disaster, so that her injuries and death are her own fault.  Of course, my mother is dead, so only I can speak for her. They also attempt to blame me for my mother's harm and death, a layperson (I have not practiced medicine in over 21 years): <blockquote class="tr_bq">54. Upon information and belief, Scot Silverstein’s actions and/or omissions may have been the cause or one of the causes of the harm suffered by the Decedent and/or her Estate.</blockquote><blockquote>55. Upon information and belief Scot Silverstein may be contributorily or comparatively negligent for any harm to the decedent and/or her Estate.</blockquote> They also falsely claim I never informed medical staff about my mother's heart medication, nothwithstanding their own medication reconciliation (verification) policy calls for a best-effort complete re-verification of medications from all available sources at every transition of care, such as when she went from ED to ICU, and then ICU to floor, when I was not present.  Such resources would include, among others:  1) me, via telephone (not used);  2) the patient (apparently this resource was not used); 3) past EHR visit med lists showing the heart medication (also, apparently not used).  As the Abington Hospital filing was signed and verified by their VP "Patient Advocate" / Director of Risk Management <a href="http://www.corporationwiki.com/Pennsylvania/Abington/regina-sturgis/81813980.aspx">Regina Sturgis</a>, considering these cases, I must ask the question if the practice of "blaming the harmed or dead patient" for their harm is a risk management strategy taught in the seminars these folks attend. Blaming dead patients or their families for harm from medical misadventures is absolutely horrifying.  It shows disrespect for the dead and is depraved, especially coming from a hospital, I think any prospective patient would agree. -- SS

A New And Quite Perverse Hospital Ploy to Defend Medical Malpractice - Blame the Dead Patient? Two Examples

I did not think hospitals would ever get to the level of perversity, in defense of EHRs and EHR-related malpractice, seen herein.Just a few days ago I came across the following article on a web search…

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10 Sep 2013

Who Would Have Thought, Comrades, That The Most Severe Form of Attempted Internet Censorship Could Originate in a Community Hospital, Abington Memorial, That Alleges Itself A Non-Profit Public Servant?

<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"></div>I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motion by the defense in the EHR-related lawsuit initiated by my deceased mother in which I am now substitute plaintiff proved otherwise: <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="AlternatingGridItem"><td>75</td><td>E</td><td>4/19/2013</td><td>Motion</td><td>BY ABINGTON MEMORIAL HOSPITAL MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT WITH MEMORANDUM OF LAW WITH SERVICE ON 04/19/2013</td><td>No</td><td>9267260</td></tr></tbody></table> The hospital was attempting to have the Court issue a Motion for Prior Restraint (<a href="http://en.wikipedia.org/wiki/Prior_restraint">http://en.wikipedia.org/wiki/Prior_restraint</a>), including against my writings here in the Healthcare Renewal blog, in a civil matter. In my view this attempt sets a very deleterious precedent for others opposed to hospital practices.  A topic frequently discussed at this blog is <a href="http://hcrenewal.blogspot.com/search/label/imperial%20CEO">imperial management</a>.  Hospital management seems to have now become so arrogant that it apparently believes itself to have supra-Constitutional reach.  This bodes poorly for both patients' and clinicians' rights. How many other hospitals might try this, and not just against parties to litigation, hoping to get a favorable ruling? <blockquote class="tr_bq">Prior restraint (also referred to as prior censorship or pre-publication censorship) is <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> imposed, usually by a government, on expression before the expression actually takes place. Prior restraint is often considered a particularly oppressive form of <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all.  Prior restraint ... takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. ... most of the early struggles for <a href="http://en.wikipedia.org/wiki/Freedom_of_the_press" title="Freedom of the press">freedom of the press</a> were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.</blockquote> Excerpts of plaintiff attorney's legal response are below (full PDF of this civil document is available at <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Abington_Memorial_Hospital_PL%20response%20to%20DF%20motion%20for%20prior%20restraint.PDF">http://www.ischool.drexel.edu/faculty/ssilverstein/Abington_Memorial_Hospital_PL%20response%20to%20DF%20motion%20for%20prior%20restraint.PDF</a>).  The response was, in fact, largely right out of the U.S. Constitution.   It is stunning that a community hospital, allegedly a servant of the public, would pull the legal stunts described which seem more akin to the methods of the former Soviet Union: <blockquote class="tr_bq">... as the entirety of the blog describes, Dr. Silverstein was troubled with, and expressed his opinion that, the defendant’s counsel’s repeatedly advancing an argument [that the same attorney had made three years prior regarding a medical malpractice case in the very same hospital - ed.] that was soundly rejected by another court [related to Certificates of Merit that delayed proceedings in my mother's case for almost two years - ed.], and the defendant’s failure to reference that case in any substantive way as opposing authority, was, in his protected opinion, malicious and unethical. As above, Dr. Silverstein’s comments on the matter are, as defendant agrees, his beliefs, opinions and viewpoints, all of which are protected speech under the Pennsylvania and United States Constitutions; that defendant’s counsel is dissatisfied with protected speech is not a matter for this court to address. </blockquote> I would expect the defendant's counsel was following the instructions of, or at least was in collaboration with, hospital counsel, hospital senior management and the healthcare system Board of Directors. <blockquote class="tr_bq">... Unhappy that their improper tactics are now being exposed through Dr. Silverstein’s opinions in his blog, defense counsel initially threatened litigation. Now they ask this court to enjoin Dr. Silverstein, via prior restraint, from expressing his views. This extraordinary request comes in spite of the defendant offering nothing but pure speculation as the foundation upon which they ask this Court to strip the plaintiff of his First Amendment rights. ... Their request to strip plaintiff of his First Amendment rights is at odds with the Constitution, the caselaw, and the realities of the jury selection process, which has multiple safeguards in place to remove anyone who may have read and been influenced by Dr. Silverstein’s writings. Importantly, because of the defendant’s procedural tactics, this case, while over two years old, has only just begun discovery and the jury section process is nowhere in the near future. ... The simple fact is that Dr. Silverstein’s blog contains what defendant recognizes are his “beliefs, opinions and viewpoints” and, as such, they are protected. Neither defendant nor its counsel can meet the strict requirements of their unprecedented request to strip Dr. Silverstein of his constitutional rights. Their Motion must be swiftly denied. Dated: 28 May 2013 </blockquote> The court, a civil Court of Common Pleas in this county in Pennsylvania, in fact did promptly make a decision: hospital motion for censorship denied. <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="GridItem"><td>182</td><td> </td><td>6/24/2013</td><td>Order</td><td>OF 6/20/13 DANIELE,J MOTION IS DENIED; CC</td><td>No</td><td>9343590</td></tr></tbody></table> The First Amendment lives, at least in Montgomery County, Pennsylvania. However,  as the stories aggregated on this blog and others increasingly show, hospitals' mission of public service increasingly seems to be dying. Attempted use of courts to abridge First Amendment rights by a hospital seems like the pinnacle of abandonment of pretenses of public service and accountability.  Corporate interests come first, not patients.  This is a reason I increasingly am of the belief that hospital management cannot be trusted.  Accordingly, in my opinion, patients - especially acute inpatients - should have 24x7, independent advocates following every aspect of their care, receiving a daily full printout of any electronic records generated, and (if legal) even using one of the many new, small video/audio recording devices in encounters with hospital personnel. "He said/she said" is no longer an option when dealing with a <a href="http://www.youtube.com/watch?v=7SYCCY7TIXo">Сою́з Сове́тских Социалисти́ческих Респу́блик</a> mentality. <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="http://www.youtube.com/watch?v=7SYCCY7TIXo" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="138" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg5mtGnSvjYyo3OqdPT_W46MELuxp57tvQkBFlGY_tams3EFLQs4-uFZalRs3_V0nEKo7ITz59c_97mvjLCTMN0J60tz13RXxh_aWDUL2zzCMpRVH6chjTb9xLJ2NKOYw9LffH2i3PgbK_i/s200/ussr.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Click for Patriotic music!</td></tr></tbody></table> Perhaps Abington Memorial Hospital should consider adopting the rousing music above for their HR morale-building exercises. I was a Medical Resident there in 1985-87.  Like <a href="http://en.wikipedia.org/wiki/Leon_Trotsky">Lev Davidovich Bronshtein</a>, I guess I've been excommunicated for failure of obedience to the Party line. <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjfMhTPM8UO5Oqbng56M8WS9uOdfP0hfryV9_f6QtOjHPRr0Dlo2Z2P1Dw05u09kyJmXNUl4a8ZXYBdRuWbG7A0p7jR_uD5O7_qVH45g2q0GRFZrA5XxPewq-wzPCllo7DLlUtr2fE5bfII/s1600/amh_id1.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="125" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjfMhTPM8UO5Oqbng56M8WS9uOdfP0hfryV9_f6QtOjHPRr0Dlo2Z2P1Dw05u09kyJmXNUl4a8ZXYBdRuWbG7A0p7jR_uD5O7_qVH45g2q0GRFZrA5XxPewq-wzPCllo7DLlUtr2fE5bfII/s200/amh_id1.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">My old residency ID.  I've now been excommuncated.</td></tr></tbody></table> Da Svedanya for now, Comrades! -- SS

Who Would Have Thought, Comrades, That The Most Severe Form of Attempted Internet Censorship Could Originate in a Community Hospital, Abington Memorial, That Alleges Itself A Non-Profit Public Servant?

I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motion by the defense in the EHR-related lawsuit initiated by my …

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11 Aug 2013

Is ONC's definition of "Significant EHR Risk" when body bags start to accumulate on the steps of the Capitol?

In a June 25, 2013 Bloomberg News article "<a href="http://www.bloomberg.com/news/2013-06-25/digital-health-records-risks-emerge-as-deaths-blamed-on-systems.html">Digital Health Records’ Risks Emerge as Deaths Blamed on Systems</a>" by technology reporter Jordan Robertson (<a href="http://go.bloomberg.com/tech-blog/author/jrobertson40/">http://go.bloomberg.com/tech-blog/author/jrobertson40/</a>), an EHR-harms case in which I am (unfortunately) intimately involved as substitute plaintiff is mentioned: <blockquote class="tr_bq">When Scot Silverstein’s 84-year-old mother, Betty, starting mixing up her words, he worried she was having a stroke. So he rushed her to Abington Memorial Hospital in Pennsylvania. After she was admitted, Silverstein, who is a doctor, looked at his mother’s electronic health records, which are designed to make medical care safer by providing more information on patients than paper files do. He saw that Sotalol, which controls rapid heartbeats, was correctly listed as one of her medications. Days later, when her heart condition flared up, he re-examined her records and was stunned to see that the drug was no longer listed, he said. His mom later suffered clotting, hemorrhaged and required emergency brain surgery. She died in 2011. Silverstein blames her death on problems with the hospital’s electronic medical records. “I had the indignity of watching them put her in a body bag and put her in a hearse in my driveway,” said Silverstein, who has filed a wrongful-death lawsuit. “If paper records had been in place, unless someone had been using disappearing ink, this would not have happened.”</blockquote> How can I say that?  Because I trained in this hospital and worked as resident Admitting Officer in that very ED pre-computer.  The many personnel in 2010 who were given the meds history by my mother and myself directed it not to paper for others to see, but to /dev/null. Why can I say that?  Because the hospital's Motion for Prior Restraint (censorship) against me was denied outright by the presiding judge just days before the Bloomberg article was published (<a href="http://en.wikipedia.org/wiki/Prior_restraint">http://en.wikipedia.org/wiki/Prior_restraint</a>): <blockquote class="tr_bq">Prior restraint (also referred to as prior censorship or pre-publication censorship) is <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> imposed, usually by a government, on expression before the expression actually takes place. An alternative to prior restraint is to allow the expression to take place and to take appropriate action afterward, if the expression is found to violate the law, regulations, or other rules. Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander" title="Slander">slander</a> or <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Libel" title="Libel">libel</a>. In some countries (e.g., <a href="http://en.wikipedia.org/wiki/Law_of_the_United_States" title="Law of the United States">United States</a>, <a href="http://en.wikipedia.org/wiki/Constitution_of_Argentina" title="Constitution of Argentina">Argentina</a>) prior restraint by the government is forbidden, subject to certain exceptions, by a <a href="http://en.wikipedia.org/wiki/Constitution" title="Constitution">constitution</a>. Prior restraint is often considered a particularly oppressive form of <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as actions for <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Libel" title="Libel">libel</a> or <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander_and_libel#Criminal_libel" title="Slander and libel">criminal libel</a>, <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander" title="Slander">slander</a>, <a href="http://en.wikipedia.org/wiki/Defamation" title="Defamation">defamation</a>, and <a href="http://en.wikipedia.org/wiki/Contempt_of_court" title="Contempt of court">contempt of court</a>) implement criminal or civil sanctions only after the offending material has been published. While such sanctions might lead to a <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Chilling_effect_%28term%29" title="Chilling effect (term)">chilling effect</a>, legal commentators argue that at least such actions do not directly impoverish the <a href="http://en.wikipedia.org/wiki/Marketplace_of_ideas" title="Marketplace of ideas">marketplace of ideas</a>. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship.</blockquote> The First Amendment lives. (I wonder if it irks the hospital that they cannot perform <a href="http://www.aapsonline.org/index.php/article/sham_peer_review_resources_physicians/">sham peer review</a> upon me now that the censorship motion is denied.  Sham peer review is a common reaction by hospital executives to "disruptive" physicians, but I have not worked there since 1987 and I no longer practice medicine.) In the Bloomberg story Mr. Robertson wrote: <div style="margin-left: 40px;">... “So far, the evidence we have doesn’t suggest that health information technology is a significant factor in safety events,” said Jodi Daniel (<a href="http://www.healthit.gov/newsroom/jodi-daniel-jd-mph">http://www.healthit.gov/newsroom/jodi-daniel-jd-mph</a>), director of ONC’s office of policy and planning. “That said, we’re very interested in understanding where there may be a correlation and how to mitigate risks that do occur.”</div> In my opinion this statement represents gross negligence by a government official.  Ms. Daniel is unarguably working for a government agency pushing this technology.   She makes the claim that "so far the evidence we have doesn't suggest significant risk" while surely being aware (or having the fiduciary responsibility to be aware) of the impediments to having such evidence. From my March 2012 post "Doctors and EHRs: Reframing the 'Modernists v. Luddites' Canard to The Accurate 'Ardent Technophiles vs. Pragmatists' Reality" at <a href="http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html">http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html </a> (yes, this was more than a year ago): <blockquote class="tr_bq">... The Institute of Medicine of the National Academies noted this in their <a href="http://hcrenewal.blogspot.com/2011/11/iom-report-on-health-it-safety-nix-fda.html">late 2011 study on EHR safety</a>: <blockquote>... While some studies suggest improvements in patient safety can be made, others have found no effect. Instances of health IT–associated harm have been reported. However, little published evidence could be found quantifying the magnitude of the risk. Several reasons health IT–related safety data are lacking include the absence of measures and a central repository (or linkages among decentralized repositories) to collect, analyze, and act on information related to safety of this technology. Another impediment to gathering safety data is contractual barriers (e.g., nondisclosure, confidentiality clauses) that can prevent users from sharing information about health IT–related adverse events. These barriers limit users’ abilities to share knowledge of risk-prone user interfaces, for instance through screenshots and descriptions of potentially unsafe processes. In addition, some vendors include language in their sales contracts and escape responsibility for errors or defects in their software (i.e., “hold harmless clauses”). The committee believes these types of contractual restrictions limit transparency, which significantly contributes to the gaps in knowledge of health IT–related patient safety risks. These barriers to generating evidence pose unacceptable risks to safety.[IOM (Institute of Medicine). 2012. <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Patient%20Safety%20and%20Health%20IT%20prepub.pdf">Health IT and Patient Safety: Building Safer Systems for Better Care</a> (PDF). Washington, DC: The National Academies Press, pg. S-2.] </blockquote> Also in the IOM report: <blockquote class="tr_bq">… “For example, the number of patients who receive the correct medication in hospitals increases when these hospitals implement well-planned, robust computerized prescribing mechanisms and use barcoding systems. But even in these instances, the ability to generalize the results across the health care system may be limited. For other products— including electronic health records, which are being employed with more and more frequency— some studies find improvements in patient safety, while other studies find no effect. More worrisome, some case reports suggest that poorly designed health IT can create new hazards in the already complex delivery of care. Although the magnitude of the risk associated with health IT is not known, some examples illustrate the concerns. Dosing errors, failure to detect life-threatening illnesses, and delaying treatment due to poor human–computer interactions or loss of data have led to serious injury and death.”</blockquote></blockquote> I also noted that the 'impediments to generating evidence' effectively rise to the level of legalized censorship, as observed by Koppel and Kreda regarding gag and hold-harmless clauses in their JAMA article "<a href="http://jama.ama-assn.org/content/301/12/1276.extract">Health Care Information Technology Vendors' Hold Harmless Clause: Implications for Patients and Clinicians</a>", JAMA 2009;301(12):1276-1278. doi: 10.1001/jama.2009.398. FDA had similar findings about impediments to knowledge of health IT risks, see my Aug. 2010 post "Internal FDA memorandum of Feb. 23, 2010 to Jeffrey Shuren on HIT risks. Smoking gun?" at <a href="http://hcrenewal.blogspot.com/2010/08/smoking-gun-internal-fda-memorandum-of.html">http://hcrenewal.blogspot.com/2010/08/smoking-gun-internal-fda-memorandum-of.html</a>. I also note this from amednews.com's coverage of the ECRI Deep Dive Study (<a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html" target="_blank">http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html</a>): <div style="margin-left: 40px;">... In spring 2012, a surgeon tried to electronically access a patient’s radiology study in the operating room but the computer would show only a blue screen. The patient’s time under anesthesia was extended while OR staff struggled to get the display to function properly. That is just one example of 171 health information technology-related problems reported [voluntarily] during a nine-week period [from 36 hospitals] to the ECRI Institute PSO, a patient safety organization in Plymouth Meeting, Pa., that works with health systems and hospital associations in Kentucky, Michigan, Ohio, Tennessee and elsewhere to analyze and prevent adverse events. Eight of the incidents reported involved patient harm, and three may have contributed to patient deaths, said the institute’s 48-page report, first made privately available to the PSO’s members and partners in December 2012. The report, shared with American Medical News in February, highlights how the health IT systems meant to make care safer and more efficient can sometimes expose patients to harm.</div> One wonders if Ms. Daniels' definition of "significant" is when body bags start to accumulate on the steps of the Capitol. I also note she is not a clinician but a JD/MPH. I am increasingly of the opinion that non-clinicians need to be removed from positions of health IT leadership at regional and national levels. In large part many just don't seem to have the experience, insights and perhaps ethics necessary to understand the implications of their decisions. At the very least, such people who never made it to medical school or nursing school need to be kept on a very short leash by those who did. -- SS

Is ONC's definition of "Significant EHR Risk" when body bags start to accumulate on the steps of the Capitol?

In a June 25, 2013 Bloomberg News article "Digital Health Records’ Risks Emerge as Deaths Blamed on Systems" by technology reporter Jordan Robertson (http://go.bloomberg.com/tech-blog/author/jrobertso…

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02 Jul 2013

SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential <a href="http://en.wikipedia.org/wiki/Internet_censorship">Internet censorship</a> and/or attempted <a href="http://en.wikipedia.org/wiki/Prior_restraint">prior restraint</a> of the rights of a citizen to express him/herself freely: At my post "<a href="http://hcrenewal.blogspot.com/2013/04/hospital-defense-maliciousness-aided.html">Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal</a>" I wrote about how a defense attorney in a case I unfortunately am substitute plaintiff in, that involving EHRs and the injury and the death of my mother, violated the requirement under the Code of Conduct of lawyers to exhibit candor before the tribunal, and perhaps 18 Pa.C.S. §4904 relating to unsworn falsification to authorities as well. As also mentioned, the lawfirm was displeased, but did not respond to my offer to consider amending any factually erroneous assertions at that post. Now here is their response: <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="AlternatingGridItem"><td>4/19/2013</td><td>Motion</td><td>BY ABINGTON MEMORIAL HOSPITAL MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT WITH MEMORANDUM OF LAW WITH SERVICE ON 04/19/2013</td></tr></tbody></table> The Motion text is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Def%27s%20Motion%20to%20Prohibit%20Commentary%20about%20this%20Litigation%20%2800262678%29.pdf">here</a> in PDF (it is a public document available to anyone on the Montgomery County, PA Prothonotary website). The court has yet to rule on this new motion and Substitute Plaintiff's (me) replies. I will, of course, abide by the Court's decision. First: I note that I have been writing about issues of court process, not the substance of the case's actual issues.   I think citizens have a right to know about process in their courtrooms.  I am also Joe Public, exercising my rights to freedom of expression; I am not an attorney breaking some rule of case publicity.  I am not even the suit's initiator.  What rule(s) am I breaking, exactly, I'd like to know from the Defense. Further, in my opinion, considering that multiple authorities including the Institute of Medicine of the National Academies (<a href="http://hcrenewal.blogspot.com/2011/11/iom-report-on-health-it-safety-nix-fda.html">link</a>), FDA (<a href="http://hcrenewal.blogspot.com/2010/08/smoking-gun-internal-fda-memorandum-of.html">link</a>), Joint Commission (<a href="http://hcrenewal.blogspot.com/2008/12/joint-commission-sentinel-events-alert.html">link</a>), ECRI Institute (<a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">link</a>), National Institute of Standards and Technology (<a href="http://hcrenewal.blogspot.com/2011/10/nist-on-ehr-mission-hostile-user.html">link</a>), AHRQ-Agency for Healthcare Research and Quality at HHS itself (<a href="http://healthit.ahrq.gov/HealthITHazardManagerFinalReport">link</a>) and others have written about risks of health IT to patients and the need for far more study and data on the issue, in my view there is a compelling public interest in being informed about the progress of this lawsuit. We have not reached the day yet, I hope, when computers have more rights than patients. I note that if the involved lawfirm, Marshall Dennehey Warner Coleman Goggin, would stick to the Rules of Conduct for attorneys, it would seem they have nothing to fear. I note the remarkable statement about "unjustified and malicious personal attacks against Moving Defendant and defense counsel", i.e., pointing out exactly what they did.  Namely, fail to provide the required Candor towards the Tribunal regarding the undisclosed 2008 Stroud v. AMH decision on COM's, known to them (same hospital, same counsel) at the time multiple, frivolous contrary claims about COM's to harm my mother's case were made to the courts from 2010 to just recently in 2013.  In fact, that statement itself may be an example of legal misconduct - rendering false charges and certifying them in writing to a court as true.  I note that I didn't write the <a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html">Rules of Professional Conduct for attorneys</a>; attorneys did, including Rule 3.3: "Candor before the Tribunal" whose obvious violation and my pointing it out is certainly not an "unjustified and malicious personal attack." As far as "fair trials" go - their stated concern in this latest filing - the defense should have thought about that before breaking the aforementioned Rule of Professional Conduct, causing numerous delays.  (I wonder how many med mal cases with proper paperwork are stalled more than 2 years before Discovery even begins - the case was filed 7/16/2010.) It seems to me that my mother deserved to be alive at the time of her fair trial ("<a href="http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied">Justice delayed is justice denied</a>.")  I would certainly like to know if the Defense thinks otherwise. -- SS Apr. 19, 2013 Addendum: As noted at Wikipedia regarding what appears to be a <a href="http://en.wikipedia.org/wiki/Prior_restraint">Motion for Prior Restraint</a>: <blockquote class="tr_bq">Prior restraint is often considered a particularly oppressive form of <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as actions for <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Libel" title="Libel">libel</a> or <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander_and_libel#Criminal_libel" title="Slander and libel">criminal libel</a>, <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander" title="Slander">slander</a>, <a href="http://en.wikipedia.org/wiki/Defamation" title="Defamation">defamation</a>, and <a href="http://en.wikipedia.org/wiki/Contempt_of_court" title="Contempt of court">contempt of court</a>) implement criminal or civil sanctions only after the offending material has been published. While such sanctions might lead to a <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Chilling_effect_%28term%29" title="Chilling effect (term)">chilling effect</a>, legal commentators argue that at least such actions do not directly impoverish the <a href="http://en.wikipedia.org/wiki/Marketplace_of_ideas" title="Marketplace of ideas">marketplace of ideas</a>. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The <a class="mw-redirect" href="http://en.wikipedia.org/wiki/United_States_Supreme_Court" title="United States Supreme Court">United States Supreme Court</a> expressed this view in <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Nebraska_Press_Assn._v._Stuart" title="Nebraska Press Assn. v. Stuart">Nebraska Press Assn. v. Stuart</a> by noting:</blockquote> <blockquote class="tr_bq"><blockquote class="templatequote"><div class="Bug6200">The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.</div></blockquote><blockquote class="templatequote"><div class="Bug6200">A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time.</div></blockquote></blockquote> <blockquote class="tr_bq">Also, most of the early struggles for <a href="http://en.wikipedia.org/wiki/Freedom_of_the_press" title="Freedom of the press">freedom of the press</a> were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.</blockquote> -- SS

SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential Internet censorship and/or attempted prior restraint of the rights of a citizen to express him/herself freely:At my post "Hospital defense maliciousness, aided and abe…

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19 Apr 2013

Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

At Healthcare Renewal we've written of hospitals' deviations from the core mission of compassionate, ethical and safe patient care, towards profiteering at patient's and the community's expense. What we haven't written about is maliciousness. At my Feb. 2013 posts about my late mother's (now my) lawsuit regarding injury and death that involved EHR problems, namely "<a href="http://hcrenewal.blogspot.com/2013/02/the-lengths-hospital-will-go-to-in.html" target="_blank">The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections</a>"   and   "<a href="http://hcrenewal.blogspot.com/2013/02/more-on-lengths-hospital-will-go.html" target="_blank">More on the lengths a hospital will go through to protect their EHR from discovery</a>", I'd opined that the defense's repeated position that individual Certificates of Merit [COMs] were required naming or otherwise "identifying by specialty" every single licensed professional for whom the parent hospital was being held vicariously liable was contradicted by state law and procedure. I'd posted this as an example: <blockquote class="tr_bq">From the official publication of the Civil Procedure Rules Committee in the state [of PA], effective a decade ago: <div style="text-align: center;"><img border="0" height="310" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0U6lMWpjedAb5GxPK8VKdmEN5cCoppS1TRPf228O7KvGm60pqw9uTO7kDyM7PFH3T-3hntaHlXp4PBRHB2SVcrtj3I_KWJNd1pnWyqorZ1PymkMNcwjVXxCy3bofu1Gstkqu0aPlRju5H/s1600/COM_rule.jpg" width="320" /></div> </blockquote>Such a single COM for vicarious liability had been timely filed at the outset of the case in 2010, as well as a COM for direct hospital liability. Yet the defense persisted in their multiple-COM position, filing a Motion for Reconsideration of a denial of their COM position, an "emergency" petition for review with Superior Court of PA not certified for appeal by the local judge that was also denied (not even heard), a Motion for Reconsideration of the denial of the initial Motion for Reconsideration, "protective orders" for witnesses to prevent their being deposed, and even a complaint that the judge of record had no authority to let the first Motion for Reconsideration expire on its own, which they do if not responded to in 30 days.  This all ate up time. Except they "forgot" to tell the judge that their COM argument had been thrown out several years prior by the U.S. District Court in these parts - same defendant, same defense attorney.  (More on this lack of mandatory Candor Before the Tribunal below.) Instead of candor, defense attorney <a href="http://www.marshalldennehey.com/attorneys/carolyn-b-digiovanni" target="_blank">Carolyn B. DiGiovanni</a> of the lawfirm <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> filed motions - like this one of 12/6/2010 below - seeking to have the court strike the vicarious liability COM as "inadequate under the rules" and get the organization off the hook for vicarious liability for its agents/employees, that I cite directly.  Emphases mine: <blockquote class="tr_bq">... 16. In the instant [current, i.e., Silverstein v. AMH - ed.] case, Plaintiff chose to file only one Certificate of Merit on her vicarious liability claim against Abington Memorial Hospital, which is insufficient under the Rules. [Well, no, actually; it was precisely what the rules called for.  See below - ed.] 17. Despite the fact that Rule 1042.3(a)(2) specifically addresses those situations involving vicarious liability, Plaintiff has failed to comply with the mandates of Rule 1042.3(a)(2) that a separate Certificate of Merit must be filed pursuant to (a)(1) as to the other licensed professionals for whom the vicarious Defendant is responsible. 18. In the present case, although Plaintiff filed a Certificate of Merit, Plaintiff did not file a timely Certificate of Merit which supports her direct claims of liability against the agents, employees and/or subcontractors for whom she claims Defendant, Abington Memorial Hospital, is vicariously liable, in accordance with the Pennsylvania Rules of Civil Procedure. 19. As Plaintiff has failed to timely produce [multiple - ed.] Certificates of Merit which satisfy the mandates of Pa.R.C.P. 1042.3 within sixty (60) days of the filing of the Complaint, entry of partial judgment of non pros [non-prosecution - ed.] on Plaintiffs claim for vicarious liability is warranted as a matter of law. 20. Accordingly, Defendant, Abington Memorial Hospital, files the instant Motion seeking to strike the Certificate of Merit and for the entry of partial judgment of non pros on Plaintiffs claim for vicarious liability pursuant to Pa. R Civ. P. 1042.7.</blockquote> The truth of the above claims was certified in writing to the local court: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s1600/sworn.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s400/sworn.jpg" width="327" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">"I, Carolyn B. DiGiovanni, Esquire, Attorney for Defendant, Abington Memorial Hospital, verifies that the facts set forth in the Motion or Defendant, Abington Memorial Hospital to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros Pursuant to Rule 1042.6 are true to the best of her knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities."  (Click to enlarge)</td></tr></tbody></table> This <a href="http://legal-dictionary.thefreedictionary.com/Attorney+Misconduct">legal misconduct</a> kept the case mired in procedure for several years, with no Discovery conducted (except the defense helping themselves to my mother's medical records): <blockquote class="tr_bq">Legal misconduct: Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures.. </blockquote> This nonsense is finally over. The judge has explicitly denied any further Motions for Reconsideration of the Certificate of Merit issue, and  has granted a Motion to Compel both Discovery (including all EHR metadata) in 30 days, and depositions within 45 days. (If we discover that EHR problems were causing other injuries or deaths, it may be time for a visit to the DA's Office of this jurisdiction.) Here's what I believe ended this matter, a revelation showing what I believe is hospital defense maliciousness regarding the rights of the injured and deceased (e.g., my mother, who died in June 2011, might have been able to participate in her own trial if these delays had not occurred): My mother's (now my) attorney recently discovered  a 2006 case in U.S. District Court of Eastern Pennsylvania, Stroud vs. Abington Memorial Hospital, where the same defense for the same hospital tried exactly the same COM attack tactic, and were denied.   The Stroud case was presented to the Silverstein court just a few weeks ago. The Stroud decision of August 2008 is at this link:  <a href="http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf">http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf </a>. One of the defense attorneys in that case was the selfsame Carolyn B. DiGiovanni  (then at law firm <a href="http://www.whiteandwilliams.com/" target="_blank">White & Williams LLP</a> according to the Lexis-Nexis transcript), now acting as principal counsel in the 2010 case Silverstein vs. Abington Memorial Hospital: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s1600/lexisnexis.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s400/lexisnexis.jpg" width="336" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Stroud v. AMH, Aug. 2008.  A familiar lawyer name.  Click to enlarge.</td></tr></tbody></table> In Stroud in Aug. 2008 the U.S. District Court of Eastern PA concluded: <blockquote class="tr_bq">... II. Motion as to Vicarious Liability Claims Based on Other Actors’ Conduct Hospital also seeks judgment in its favor as to any vicarious liability claims of negligence against the Hospital that Plaintiff might bring based on the actions of any Hospital personnel other than Defendant McAllister. Hospital takes the position that Plaintiff did not timely file any certificates of merit (“COM”) to support such claims except as to Dr. McAllister and, therefore, that any vicarious liability claims for the acts of any nurse, physician (other than Dr. McAllister), or other personnel should be dismissed.  After careful review of the Pennsylvania certificate of merit rule, however, we conclude that Plaintiff is in compliance. ... We do not believe more [than one COM -ed.] is required of Plaintiff. The parties put forth differing interpretations of the Rule and its official “Note.” We read the first sentence of the “Note” following <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.3.html" target="_blank">Rule 1042.3(a)(2)</a> to reiterate that a COM (the contents of which is described in subsection (a)(1)) is required as to a particular defendant even when the plaintiff is bringing a claim of vicarious liability as described in subsection (a)(2) against that defendant. We do not read it to require that a COM be filed as to a non-party [i.e., parties to whom the hospital is charged with vicarious liability for their actions such as employees and contractors - ed.]. We observe that the Note clearly states that the expert statement underlying the COM “is not required to identify the specific licensed professionals who deviated from an acceptable standard of care.” [ Pa. R. Civ. P. 1042(a)(2) Note.]  It would be incongruous for a plaintiff to be relieved of having his expert detail specific negligent individuals in his or her supporting written statement yet be required to simultaneously file separate COMs as to those individuals.  While the Hospital directs our attention to the Note that accompanied a prior version of this rule as authority for its interpretation of the intention of the rule, we find it more persuasive that the Pennsylvania Supreme Court, by order entered on February 11, 2005, specifically re-wrote the Note to subsection (a)(2) — the only apparent change to this rule at that time. We believe that the Court’s decision to delete a provision that explicitly stated that COMs “must be filed as to the other licensed professionals whether or not they are named defendants in the action” (emphasis added) must be given effect. We conclude that where the conduct of other licensed professionals who are not named as defendants in the action is the basis for a claim of vicarious liability against a named defendant [i.e., hospital - ed.] (for whom a COM is filed), no further COM [beyond one - ed.] is required. This interpretation is bolstered by the fact that the Form COM provided in Pa. R. Civ. P. 1042.8 [now <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.9.html">1042.9</a> - ed.] contemplates the certificate naming a “Defendant” (in the blank line following the title “Certificate of Merit as to”). We also note that, in the case discussed by Plaintiff in his opposition, Yee v. Roberts, 878 A.2d 906 (Pa. Super. Ct. 2005), the Superior Court reiterated that a timely-filed COM was necessary as to a claim of vicarious liability against a dental partnership but did not suggest that an additional COM would have been necessary as to the non-party employee (identified by her first name in the complaint) whose conduct was alleged to be negligent. </blockquote> In other words, the Certificate of Merit argument proffered by the hospital and its defense in 2010-2013, including the same Carolyn B. DiGiovanni who'd heard with her own ears and seen with her own eyes the same contention denied in 2008 (a contention that helped keep Silverstein vs. AMH in the incipient pleading stages with no Discovery for years) was entirely frivolous. Remarkably, the existence of the 2008 Stroud decision as above was never divulged to the current local PA court, in what appears to me to be a violation of the intent if not the letter of the ABA and <a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html" target="_blank">PA Rules of Professional Conduct for attorneys</a>: <blockquote class="tr_bq"><h4>PA Rule 3.3. Candor Toward the Tribunal.</h4> (a)  A lawyer shall not knowingly:    (1)  make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;    (2)  fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or     (3)  offer evidence that the lawyer knows to be false. </blockquote>Not only was the Aug. 2008 Stroud case decision on COMs "known to the lawyer", it was a case in which they had been directly and professionally involved. Obviously, mentioning the 2008 Stroud decision at the outset would likely have been entirely destructive - right from day 1 - of any claim that multiple COM's on vicarious liability were needed in 2010. In the face of the aforementioned 2008 Stroud v. AMH decision, this type of filing and the deliberate lack of Candor Toward the Tribunal was malicious, in my opinion, to delay proceedings - quite disrespectful of my injured and now deceased mother and to my own rights as substitute plaintiff. The judge's latest decision ordering an end to this court procedural misuse is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Denying%20Def%27s%20Motion%20for%20Reconsideration%20of%20Denial%20of%20Earlier%20Motion%20(00261356).PDF" target="_blank">at this link</a>.  The judge seemed somewhat angry: <blockquote class="tr_bq">... When the Superior Court of Pennsylvania denied Defendant's petition for review, Silverstein v. Abington Mem. Hosp.,No. 99 EDM 2012, as we explained in the January 13 order, we considered the [Certificate of Merit] matter concluded. Specifically, our order found that the alternative request for reconsideration had been "deemed denied" or "expired" as well, citing Stephens v. Messíck,7gg A.2d793, 801 (Pa. Super. Ct.2002) ("A motion for reconsideration appeals to the court's discretion . . . . Normally, motions for reconsideration expire on their own . . . .").  Undeterred, Defendant, on February 1,2013, filed a motion for reconsideration of our denial of the motion for reconsideration of our denial of the "Motion of Defendant, Abington Memorial Hospital, to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros [got that? - ed.]  pursuant to pa.R.C.P . 1042.7,and sent us a copy of the second motion for reconsideration.... We now, however, in the hope of putting the matter to rest, order as follows: 1) Defendant's motion for reconsideration of our denial of Defendant's earlier motion for reconsideration is deníed. We pause to comment that the theory espoused in Defendant's "reply" to plaintiff's answer in opposition to the second motion for reconsideration-that we declined to entertain Defendant's first motion for reconsideration based on the erroneous belief we had no jurisdiction to do so - is incorrect .  [This lawyer was trying to tell a judge what he could and could not do - ed.] ... This Court, at least this jurist, will entertain no further requests for reconsideration of the subject matter of these motions and orders, barring contrary direction from a higher authority,  and we encourage the parties not to file any such further requests. [The reconsideration 'requests' came solely from the defense, I add - ed.] By the Court, <a href="http://judgepedia.org/index.php/Joseph_A._Smyth,_Jr.">Joseph A. Smyth, Jr.</a> </blockquote> Thank God, because I was fully expecting, barbershop-mirror style, a "Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Motion for Reconsideration." Sadly, this is the hospital where I'd completed my residency in 1987 with solid recommendations - including for a medical informatics postdoc that helped give me my current expertise - from its current Chief Medical Officer, then a residency program director. This form of hospital defense abuse - frivolously and with malice trying to stall or evade court process guaranteed to citizens in the Constitution, especially when they are frail and may soon die - must not be permitted. Finally, I observe that perhaps <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> needs to provide better CLE instruction on the PA and ABA Rules of Professional Conduct. -- SS April 11, 2013 addendum: <blockquote class="tr_bq">Health Leaders Media April 5, 2013 <a href="http://www.healthleadersmedia.com/print/TEC-290834/HIT-Errors-Tip-of-the-Iceberg-Says-ECRI" target="_blank">HIT Errors 'Tip of the Iceberg,' Says ECRI </a> Healthcare systems' transitions from paper records to electronic ones are causing harm and in so many serious ways, providers are only now beginning to understand the scope.  [I understood the scope years ago as reflected in my writings - ed.] Computer programs truncated dosage fields, leading to morphine-caused respiratory arrest; lab test and transplant surgery records didn't talk to each other, leading to organ rejection and patient death; and an electronic systems' misinterpretation of the time "midnight" meant an infant received antibiotics one dangerous day too late. These are among the 171 health information technology malfunctions and disconnects that caused or could have caused patient harm in a report to the ECRI Institute's Patient Safety Organization. Thirty-six participating hospitals [a small number indeed - ed.] reported the data under a special voluntary program conducted last year. Karen Zimmer, MD, medical director of the institute, says the reports of so many types of errors and harm got the staff's attention in part because the program captured so many serious errors within just a nine-week project last spring.  [Including 8 injures and 3 possible deaths in just 9 weeks as I wrote at "Peering Underneath the Iceberg's Water Level: AMNews on the New ECRI Deep Dive Study of Health IT Events" <a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">here</a> - ed.] The volume of errors in the voluntary reports was she says, "an awareness raiser." "If we're seeing this much under a voluntary reporting program, we know this is just the tip of the iceberg; we know these events are very much underreported." ... ECRI is currently evaluating a similar, and much larger list of reports from many of the 800 hospitals that contract with ECRI's PSO services. </blockquote> It's about damn time someone looked at EHR-related mishaps seriously. -- SS April 13, 2013  Addendum: This hospital is apparently insured via a consortium of 8 regional nonprofit hospitals: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s1600/Amh_insurance.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="113" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s400/Amh_insurance.jpg" width="400" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">(Click to enlarge)</td></tr></tbody></table><div class="separator" style="clear: both; text-align: center;"></div> The frivolous filings (including several that were hundreds of pages long) and legal misconduct likely cost insurer <a href="http://www.hoovers.com/company-information/cs/company-profile.Cassatt_Rrg_Holding_Company.cc00729a143fc7f3.html">Cassatt RRG</a> a small fortune, a disgrace for charitable organizations to have their funds wasted in this manner for defense lawyer enrichment.  I feel Cassatt needs to know about this, so I will inform them. -- SS April 18, 2013 Addendum: From my counsel on 4/16 I am informed the defense lawfirm is upset at this posting.  I have, being a reasonable author, offered through my counsel to consider revisions if defense would identify statements they believe non-factual, along with a basis of claims of non-factuality.  Nothing has been received in response. -- SS

Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

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11 Apr 2013

An Expensive Healthcare Computing Mistake: $1.5 Million

At my June 2011 post "<a href="http://hcrenewal.blogspot.com/2011/06/babys-death-spotlights-safety-risks.html">Babies' deaths spotlight safety risks linked to computerized systems</a>" I reported on a case (case #2) of an infant death in part attributed to HIT (PACS) interference in otherwise simple care processes. In "Allen-Blake vs. Abington Memorial Hospital", a critical x-ray of a PICC (<a href="http://en.wikipedia.org/wiki/Peripherally_inserted_central_catheter">peripherally inserted central catheter</a>) line placement allegedly was never read due to misdating. The Allen-Blake case was settled 2/29/12 for $1.5 million, according to the public docket count 78 (<a href="http://webapp.montcopa.org/PSI/Viewer/Detail.aspx?oq=aWQ9MjAwNzcwODI4JmVudGl0eT1DYXNl">link</a>): <table class="ChamaeleonGrid" rules="all" border="1" cellspacing="0"><tbody><tr class="GridItem"><td>2/29/2012</td><td>Order</td><td>OF 2/28/12 OTT, J PROPOSED SETTLEMENT OF $1,500,000.00 APPROVED CC </td></tr></tbody></table> That $1.5 million might have paid for a lot of other things, such as provision of better medical care through hiring/retention of more staff. The legal fees for defense incurred must also have been substantial, representing yet more precious healthcare capital down the proverbial drain. Add cases like this to the "total cost of ownership" of health IT. -- SS

An Expensive Healthcare Computing Mistake: $1.5 Million

At my June 2011 post "Babies' deaths spotlight safety risks linked to computerized systems" I reported on a case (case #2) of an infant death in part attributed to HIT (PACS) interference in otherwise…

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31 Mar 2012

Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Might Be Appealing?

As I described in several recent posts on malpractice cases at University of Pittsburgh Medical Center (UPMC) including: <blockquote> "UPMC and the Sweet death that wasn't very sweet: How EMRs can detract from a clear narrative, and facilitate spoliation and obfuscation of evidence" <a style="font-weight: bold;" href="http://hcrenewal.blogspot.com/2011/09/sweet-death-that-wasnt-very-sweet-how_24.html">(link)</a>, </blockquote>and <blockquote>"Propofol and Other Drug Questions: Was Michael Jackson a UPMC Patient at the Same Time as Samuel Sweet?" (<a style="font-weight: bold;" href="http://hcrenewal.blogspot.com/2011/09/was-michael-jackson-upmc-patient-at.html">link</a>), </blockquote>... electronic medical records may offer certain advantages to someone who is going to try to alter medical records. No whiteout needed, no physical erasures, a difficult to interpret and/or made-hard-to-get audit trail, etc. Why, one might ask, would a hospital and/or its clinicians attempt such a maneuver, knowing the penalties are likely to be severe? Because the penalties might not be so severe after all. While I am not an attorney, this case I came across seems to be readable by those who understand plain English: ROBERT STROUD, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JAMES H. STROUD, DECEASED, PLAINTIFF, v. ABINGTON MEMORIAL HOSPITAL, ET AL., DEFENDANTS (<a style="font-weight: bold;" href="http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20080417_0000511.EPA.htm/qx#D*fn2">link to memorandum opinion</a>). Here is a summary of what allegedly happened that led to the suit: <blockquote>IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ... 1. FACTUAL BACKGROUNDJames Stroud was admitted to Hospital for a total right knee replacement on October 25, 2004. (Doc. 45 at 11, ¶ 46.) Following surgery, he remained at Hospital under the medical care of various of the defendants and others. (Id. at 11-14, ¶¶ 47-68.) Plaintiff alleges that during that time, James Stroud complained of nausea and failed to have a bowel movement. (See, e.g., id. at 11, ¶¶ 50, 52.) Plaintiff further alleges that, while various of the defendants and others examined and treated James Stroud, they failed to adequately diagnose and treat his emergent medical condition, later found to be a bowel obstruction or ileus. (Id. at 11-14, ¶¶ 51-68.) Plaintiff specifically contends that Dr. Paul Crispen, a urology resident under the supervision of urologist Dr. Charles ordered an abdominal/pelvic CT scan to be performed on James Stroud on October 28, 2004 to investigate the cause of his lack of bowel movement. (Id. at 12, ¶ 58-59.) Robert Stroud avers that the CT scan revealed "marked dilation of the small and large bowel, representing either an obstruction or adynamic ileus," but that no action was taken in response to this finding of a potentially serious medical condition. (Id. at 14, ¶ 68-69.) Plaintiff attributes this inaction, at least in part, to the failure by the various treating medical professionals to communicate adequately concerning James Stroud's care and the failure by Hospital to have in place and enforce proper policies and procedures for interdepartmental communication. (See, e.g., id. at 19-21, ¶ 105(n), (q), (r), (aa)-(cc).) That same day that the scan was performed, October 28, 2004, James Stroud was discharged from Hospital to a rehabilitation center. (Id. at 14, ¶ 70.) The following day, October 29, 2004, he complained of abdominal pain and began vomiting. (Id. at 15, ¶ 73.) He was taken to Hospital's emergency room early that afternoon and was subsequently readmitted. (Id. at 15-16, ¶¶ 74-80.) He was examined and additional diagnostic testing, including an abdominal x-ray series, was ordered, completed, and interpreted later that evening. (Id. at 16-17, ¶¶ 81-95.) By about 11:20 p.m. he began vomiting, became unresponsive, and was unable to be revived. (Id. at 17, ¶¶ 96-98.) He was pronounced dead at 12:08 a.m. on October 30, 2004. (Id. at 17, ¶ 98.)</blockquote> There were allegations of record concealment and withholding and in finding this, the plaintiffs sought additional punitive damages. The court nonetheless decided (emphases mine): ... Plaintiff's request for punitive damages is premised on two interrelated theories: (1) that the defendants knew that James Stroud was suffering from a life threatening condition, yet failed to take any action in response to that knowledge (Doc. 45 at 59-61, ¶¶ 210-215, 222); and (2) that after the demise of James Stroud, the defendants took actions to cover up their prior negligence, including the deliberate concealment and withholding of relevant medical records (id. at 60-61, ¶¶ 216-221). Plaintiff's underlying substantive claims are, as we know, for negligence, survival, and wrongful death based on the defendants' allegedly negligent care for James Stroud. Plaintiff alleges no underlying claim concerning the defendants' alleged concealment of prior negligence. This case is thus closely analogous to the case decided by the Pennsylvania Superior Court in Gallagher [v. Temple University Hospital - ed.], which also concerned a medical malpractice action against a hospital. In Gallagher, the Superior Court held: [Appellants] asserted an independent claim for punitive damages premised upon the allegedly outrageous conduct of altering and withholding the medical records in an attempt to stymie Mr. Gallagher's guardians from successfully obtaining redress for his Injury by tampering with the discovery of the facts necessary for prosecution of his medical malpractice lawsuit. While this conduct is relevant to show after the fact awareness of negligence on the hospital's part, it does not, however, relate to the conduct alleged to have been negligent, which actually caused the injury. While the conduct surrounding the alleged withholding of certain records and the whiting out of portions of other records, if true, is undoubtedly reprehensible, none of these facts, however, relate to the malpractice being litigated. Nor do these facts assert a separate cause of action sounding in tort. 2005 WL 2649868 at *3. The Third Circuit has similarly held that a defendant's falsification of relevant records and lying at a deposition to conceal his wrongdoing, while reprehensible, is insufficient to establish the culpable mental state of recklessness necessary to impose punitive damages because it does not support the conclusion that the defendant consciously appreciated the risk of the harm he caused. See Burke, 904 F.2d at 183. In so finding, the court reasoned "that punitive damages are intended to deter risky behavior that causes harm; they are not a sanction for obstruction of justice." Id. (citation omitted). In the Stroud case the court decided and ordered that: <blockquote>... (3) Moving Defendants' [i.e., hospital and doctors - ed.] motion to dismiss Plaintiff's claim for punitive damages premised on the theory that Moving Defendants "covered up" their prior negligence is GRANTED and Plaintiff's punitive damages claim on this legal theory is DISMISSED WITH PREJUDICE. [That is, it cannot be raised again - ed.] </blockquote> One might wonder, then, what hospitals and clinicians have to lose, in a malpractice case they believe is likely to be lost on the merits, for records alteration or concealment that they think they might get away with. There is the Pennsylvania <a href="http://www.portal.state.pa.us/portal/server.pt/document/495911/hb1802_pdf" target="_blank">Medical Care Availability and Reduction of Error (MCARE) Act of 2002</a> (PDF, see Section 511, "Preservation and accuracy of medical records", pg. 18-19). However, how often is that act enforced, even if a separate complaint (which is non-judicial) about records alteration is made to the <a href="http://www.portal.state.pa.us/portal/server.pt/community/licensing/12483">PA Bureau of Professional and Occupational Affairs</a> (where large medical centers might have sympathetic friends) and to similar bodies in other states? The camouflage made possible by EMR's would only add to the temptation to try to alter the case outcome through "reprehensible" records alteration and withholding/stonewalling on the production of EMR screen shots, audit trails and other data. -- SS Sept. 30, 2011 addendum: The court's own use of the term "<a href="http://en.wikipedia.org/wiki/Obstruction_of_justice">obstruction of justice</a>" suggests another venue for addressing chart alterations besides civil court: <blockquote>The crime of obstruction of justice, in United States jurisdictions, refers to the crime of interfering with the work of police, investigators, regulatory agencies, prosecutors, or other (usually government) officials. </blockquote> Specifically, criminal court. Sept. 30, 2011 addendum #2: Apparently a memorandum opinion such as the above "Stroud v. Abington Hospital" does not create precedent (<a href="http://en.wikipedia.org/wiki/Memorandum_opinion">link</a>): <blockquote> A memorandum opinion or memorandum decision is a judicial opinion that does not create precedent, persuasive or mandatory in some jurisdictions. A memorandum is often brief and written only to announce judgment in a particular case. Depending on the kind of memorandum decision, citation of the opinion as case law may not be accepted.</blockquote> While there are likely other cases addressing the medical record alteration/withholding issue, to my legally ignorant mind [1], perhaps in addition to criminal charges, "outrageous conduct of altering and withholding the medical records" should be pursued vigorously by plaintiff's attorneys as a basis for punitive damages. This is especially true if the conduct resulted in or contributed to patient harm. Note: <div style="text-align: left;">[1] Perhaps "legal amateur" is a more accurate term in the same way I am a <a href="http://www.arrl.org/">radio amateur</a> or ham (albeit Extra Class) with some technical experience, but not a telecommunications professional who would/should run a mission-critical enterprise telecommunications project -- and in the same way that many in charge of health IT in hospitals are really <a href="http://hcrenewal.blogspot.com/2009/12/utter-arrogance-of-it-industry.html">health IT amateurs</a> with no significant formal training. </div> -- SS

Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Might Be Appealing?

As I described in several recent posts on malpractice cases at University of Pittsburgh Medical Center (UPMC) including:"UPMC and the Sweet death that wasn't very sweet: How EMRs can detract from a cl…

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29 Sep 2011

Babies' deaths spotlight safety risks linked to computerized systems

<div>Two new tragic cases. (A third, earlier case of infant death was posted in March 2011 <a href="http://hcrenewal.blogspot.com/2011/03/thanks-to-wonders-of-ehr-this-premature.html">here</a>). Case #1. See <a href="http://www.chicagotribune.com/health/ct-met-technology-errors-20110627,0,5447654.story" style="font-weight: bold;">Baby's death spotlights safety risks linked to computerized systems</a> by Judith Graham and Cynthia Dizikes in the Chicago Tribune. A baby died at Advocate Lutheran General Hospital due to an intravenous solution containing a massive overdose of sodium chloride — more than 60 times the amount ordered by the physician. The authors write: <blockquote>Although a series of other errors contributed to the tragedy, its origin — a piece of data entered inaccurately into a computer program — throws a spotlight on safety risks associated with medicine's advance into the information age, a trend being pushed aggressively under health reform. </blockquote>One wonders if any type of alert was generated, and if not, why not. Case #2. There's also been a baby death locally to me that is allegedly due to HIT (PACS) interference in otherwise simple care processes. See "Blake vs. Abington Memorial Hospital" <a href="http://webapp.montcopa.org/PSI/Viewer/Detail.aspx?oq=aWQ9MjAwNzcwODI4JmVudGl0eT1DYXNl">at this link</a>. The Complaint in the latter case, a public document, is available as a .tif image at <a href="http://tinyurl.com/43qaqyr">this link</a> (1 MB; you may need to use IE to download beyond the first page). <blockquote> (July 8 addendum: since this blog post was published, I've noted multiple "hits" on it from the IP of the hospital involved, 65.216.195.x , at different times of the day, as well as on my Drexel website on HIT failure. Clearly they are aware of the issues noted herein.)(Sept. 2011 addendum: the hospital has now filed a Motion to Compel Settlement that can be seen as item #67 and downloaded from the aforementioned courts dockets page <a href="http://webapp.montcopa.org/PSI/Viewer/Detail.aspx?oq=aWQ9MjAwNzcwODI4JmVudGl0eT1DYXNl">here</a>.)</blockquote> A critical x-ray of a PICC (<a href="http://en.wikipedia.org/wiki/Peripherally_inserted_central_catheter">peripherally inserted central catheter</a>) line placement allegedly was never read due to misdating. See for example counts 17 - 25, and 39 - 45. It was dated several days earlier than it was taken. Counts 39-49 (emphases mine): <blockquote>39. Defendants also described that the February 27, 2010, x-ray was digitally transmitted to radiology, and the technician attempted to match the image to doctors’ orders, and then put all the identifying information on the film, including the patient’s name, date of birth and date of study. 40. Defendants told Plaintiffs that the radiology technician picked the wrong name and put it on the x-ray, and then later realized it was the wrong name and then somehow changed the information on the image. 41. Defendants told Plaintiffs when the technician changed the information on the image, she typed the date of birth where she should have typed the date of study. [Puzzling; my $99 Canon camera embeds date information in the image itself, as do PACS systems - ed.] 42. Defendants told Plaintiffs that the incorrect date on the image caused the x-ray not to be read by a radiologist in the night the image was taken, and that if the image had been correctly dated February 27, 2010, it would have been reviewed by a radiologist immediately, who would have alerted Defendants that the PICC line was improperly positioned and had to be moved back to a safe position. However, since the film was incorrectly dated February 23, 2010, the film was classified as “old” and was not put in line for immediate review, and was not reviewed in time to prevent injury to Plaintiffs Decedent. 43. The Defendants told Plaintiffs that an older x-ray has less significance than a newer image and is, therefore, not as critical to review. [This is exactly the reverse of good radiological practice. 'Old' - but never officially read - means 'potential danger' such as missed findings of importance, subtle or gross findings that could alter the interpretation of later films, etc. - ed.] 44. The Defendants told Plaintiffs that the x-ray was reviewed by Dr. Griffith on the morning of February 28, 2010. At that time, Dr. Griffith, thinking that the image was from the 23rd, compared it to the next most recent image, which was from the 25th In reviewing these x-rays, Dr. Griffith reportedly concluded that the PICC line shown in the image she believed was from the 23rd had been removed by the 25th. [Gevalt - what a tragic error. In healthcare, critical attention to detail at all times is required, or your patient's dead. There is no room for computer fritter. - ed.] 45. Defendants told Plaintiff that the x-ray from the 27th, which was mislabeled as being from the 23rd, would have been reviewed by the neonatologist on duty on the morning of the 28th, but this did not happen because the computer which places films in line to be reviewed would have ignored such an “old” film. [Note the accusation of the computer making a decision on what clinicians should and should not look at, thereby acting as cybernetic 'governor' or 'conductor' of care. The machine or, more properly, the algorithms created by its programmers, decided what the humans should or should not look at. This is not uncommon in HIT. Yet, who qualified these machines and their code to play this role? More on this critical issue <a href="http://hcrenewal.blogspot.com/2011/06/electronic-medication-prescribing-magic.html">at this link</a>. - ed.] 46. The Defendants told Plaintiffs that the next 24 hours were uneventful, but late in the day on Monday May 1, 2010, Destinee’s condition began to deteriorate rapidly. 47. The Defendants told the Plaintiffs that the during the efforts to reverse Destinee’s deterioration, they discovered that the PICC line was in the wrong position, and that they confirmed this by sampling the fluid from around the heart, which was found to be full of hyperalimentation fluid, and then pulled the line back from its incorrect and dangerous position in the heart. 48. The Defendants told Plaintiffs that they did not know if the PICC line caused a hole in the heart, but that just having the line in the heart was enough for it to push the hyperalimentation fluid into the pericardium. 49. As a direct and proximate result of Defendants’ negligence, Plaintiff’s Decedent’s suffered injuries, including but not limited to: [numerous catastrophic complications followed by death - ed.]</blockquote> If these counts are accurate, I ask the same question as in case #1: if an x-ray was accidentally dated five days or so before it was taken (how can that even happen?), why was an alert not triggered that an "old" (and unread) x-ray needed an official radiologist reading ASAP? What are hospitals getting for their <a href="http://hcrenewal.blogspot.com/2006/10/70-million-for-electronic-medical.html">tens to hundreds of millions of dollars</a> they are throwing at clinical IT? This latter story really disappoints me if true. I was a Resident in Internal Medicine in this hospital in the mid 1980's and used my knowledge of radiology, in which I spent a year of formal postdoctoral education, and of computing to fix a CT scanner in the middle of the night and save a young man's life (as documented in a letter from my former Residency Director, now the Chief of Staff <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/references/jk1.jpg">here</a> and <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/references/jk2.jpg">here</a> , pgs. 1 and 2 respectively). Ironically, even after all these years, I probably could have read that PICC line placement x-ray. (Note:  more on the x-ray foul up in the Phila. Inquirer <a href="http://articles.philly.com/2011-11-06/news/30366671_1_catheter-vein-heart-wall" target="_blank">here</a>.  "Use error" - per NIST, bad IT design that promotes mistakes, as opposed to "user error" i.e., simple carelessness - seems a factor.) Technology can be a great blessing in medicine. I am alive and healthy in 2011 thanks to it. The medical condition referred to in the aforementioned letter was in fact cured as a result of advances in cardiac electrophysiology science, as<a href="http://www.ischool.drexel.edu/faculty/ssilverstein/scotsilv/batsford1.jpg"> here</a> and <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/scotsilv/batsford2.jpg">here</a>, pgs. 1 and 2). However, technology cannot be applied cavalierly, lawlessly (per attorney Sharona Hoffman), experimentally, without regulation, and without informed patient consent as is often done in the world of HIT. -- SS Feb. 29, 2012 Addendum: the Allen-Blake case was <a href="http://webapp.montcopa.org/PSI/Viewer/Detail.aspx?oq=aWQ9MjAwNzcwODI4JmVudGl0eT1DYXNl">settled</a> 2/29/12 for $1.5 million: <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="GridItem"><td>2/29/2012</td><td>Order</td><td>OF 2/28/12 OTT, J PROPOSED SETTLEMENT OF $1,500,000.00 APPROVED CC </td></tr></tbody></table> This will not, of course, bring the baby back.  Also, I certainly wonder if this is looked at by some as a cost of doing 'EHR business.' June 27, 2011 addendum: In further review of the <a href="http://webapp.montcopa.org/PSI/Viewer/Detail.aspx?oq=aWQ9MjAwNzcwODI4JmVudGl0eT1DYXNl">dockets</a> in case #2, I find there seems to be a wee problem getting the hospital's Chief of Staff Jack Kelly to a deposition. In a motion filed June 10, 2011 by the plaintiffs, "BY ADMINISTRATOR ERICA L ALLEN-BLAKE; RICARDO BLAKE; ESTATE OF DESTINEE LOTOYA BLAKE DECEASED MOTION TO COMPEL DEPOSITION OF DR. JACK KELLY" (.tif file at <a href="http://tinyurl.com/4xvr6wt">this link</a>), in Exhibit "J" the plaintiff's attorney writes to the defendants' attorney (emphases mine): <blockquote>I received your faxed letter of May 2, 2011. I don’t agree with any of your sophistry, and want to depose [Chief of Staff] Dr. Kelly. I remind you that you objected to the Complaint, claiming the meeting with the Plaintiffs had a specific purpose under MCARE (which never made any sense, but you wrote it, not me). Your objection raised issues of fact. If you don’t want to back them up, or can’t, then withdraw the objections. If you’d like to ask the Plaintiffs one question at a deposition taken pursuant to your pending objections - i.e., whether they were told by your clients that MCARE written notice was purpose of the meeting or not - I’d agree to let you do that. I can represent to you that their answer will be "no.” Be advised that I am tired of Abington’s dilatory tactics in this clear liability case in which an infant was killed by, among other things, some of the most egregious professional malpractice imaginable. On top of that, Abington refused to provide the name of the radiology technician until suit was filed. Now, you’re playing ticky-tack games about depositions, and my clients are understandably not impressed. Under cover of separate letter you will find a Notice of Deposition for Dr. Kelly for this Friday, May 6, at 2 pm in my offices. </blockquote> Wow. A motion to compel was filed on 6/22/2011 so apparently the May 6 deposition did not take place. I add the the MCARE Act of 2002 ("MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR ACT") in Pennsylvania (PDF at <a href="http://www.portal.state.pa.us/portal/server.pt/document/495911/hb1802_pdf">this link</a>) states: <blockquote>MCARE Section 308. Reporting and notification. ... B. Duty to notify patient.--A medical facility through an appropriate designee shall provide written notification ['written' - this word would appear to mean "in writing" - ed.] to a patient affected by a serious event or, with the consent of the patient, to an available family member or designee within seven days of the occurrence or discovery of a serious event. If the patient is unable to give consent, the notification shall be given to an adult member of the immediate family. If an adult member of the immediate family cannot be identified or located, notification shall be given to the closest adult family member.</blockquote> Allegedly from the June 10 Plaintiff's Motion, as it appears to me, the hospital seems to be trying to claim a verbal meeting with the family satisfied the MCARE Act's notification requirements even though nothing in writing was apparently given, but that the information exchanged in that family meeting is not admissible in court. It seems hospitals (perhaps pushed by their insurers) attempt to play legal games to try to avoid culpability for their "computer-anecdote" patients, some who end up as roadkill on the experimental racetrack of health IT. Again, this is doubly disappointing if accurate, as I knew some of the principals on the defendants' side two and a half decades ago. Also see a third case at my aforementioned March 2011 post "Thanks to the wonders of EHR, this premature baby went to the grave, prematurely" <a href="http://hcrenewal.blogspot.com/2011/03/thanks-to-wonders-of-ehr-this-premature.html">at this link</a>, from an Oct. 2010 story in Virginia Lawyers Weekly ("Failures in care alleged after premature birth - $1,000,000 Settlement"). A PICC line was also involved. -- SS </div>

Babies' deaths spotlight safety risks linked to computerized systems

Two new tragic cases. (A third, earlier case of infant death was posted in March 2011 here).Case #1. See Baby's death spotlights safety risks linked to computerized systems by Judith Graham and Cynt…

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27 Jun 2011

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