healthy4u: medical record alteration

In Michigan, Intentional Alteration of Medical Records is a Felony

I addressed the issue of alteration of electronic medical records and the dearth of truly meaningful penalties at posts such as: <blockquote>"<a href="http://hcrenewal.blogspot.com/2011/09/stroud-v-abington-memorial-hospital-is.html">Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Might Be Appealing?</a>", "<a href="http://hcrenewal.blogspot.com/2011/07/on-penalities-for-alteration-of.html">On Penalties for Alteration of Electronic Health Records</a>"</blockquote>and <blockquote>"<a href="http://hcrenewal.blogspot.com/2011/09/sweet-death-that-wasnt-very-sweet-how_24.html">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>."</blockquote> A commenter to the latter post led me to another blog where it was pointed out that in Michigan, intentional chart alteration by a healthcare provider <a style="font-weight: bold;" href="http://legislature.mi.gov/doc.aspx?mcl-750-492a">is a</a><a href="http://legislature.mi.gov/doc.aspx?mcl-750-492a"> felony</a> (a criminal act, not just a civil matter), and looks like it has been since the early 1930's. This would apply not just to paper records, but electronic as well, since the advent of HIT did not alter the essentials of medical record keeping: <table border="0" cellpadding="0" cellspacing="0"><tbody><tr><td style="padding: 0in;"> </td></tr></tbody></table><blockquote><table border="0" cellpadding="0" cellspacing="0"><tbody><tr><td style="padding: 0in;">Section 750.492a </td></tr><tr style="min-height: 22.5pt;"><td style="padding: 0in; min-height: 22.5pt;" valign="top"> </td></tr></tbody></table>THE MICHIGAN PENAL CODE (EXCERPT)<div style="text-align: center;">Act 328 of 1931 </div> 750.492a Placing misleading or inaccurate information in medical records or charts; alteration or destruction of medical records or charts; penalties; applicability of subsections (1) and (2); basis for civil action for damages not created.Sec. 492a.(1) Except as otherwise provided in subsection (3), a health care provider or other person, knowing that the information is misleading or inaccurate, shall not intentionally, willfully, or recklessly place or direct another to place in a patient's medical record or chart misleading or inaccurate information regarding the diagnosis, treatment, or cause of a patient's condition. A violation of this subsection is punishable as follows:(a) A health care provider who intentionally or willfully violates this subsection is guilty of a felony.(b) A health care provider who recklessly violates this subsection is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.(c) A person other than a health care provider who intentionally or willfully violates this subsection is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.(d) A person other than a health care provider who recklessly violates this subsection is guilty of a misdemeanor.(2) Except as otherwise provided in subsection (3), a health care provider or other person shall not intentionally or willfully alter or destroy or direct another to alter or destroy a patient's medical records or charts for the purpose of concealing his or her responsibility for the patient's injury, sickness, or death. A health care provider who violates this subsection is guilty of a felony. A person other than a health care provider who violates this subsection is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.(3) Subsections (1) and (2) do not apply to either of the following:(a) Destruction of a patient's original medical record or chart if all of the information contained in or on the medical record or chart is otherwise retained by means of mechanical or electronic recording, chemical reproduction, or other equivalent techniques that accurately reproduce all of the information contained in or on the original or by reproduction pursuant to the records media act that accurately reproduces all of the information contained in or on the original.(b) Supplementation of information or correction of an error in a patient's medical record or chart in a manner that reasonably discloses that the supplementation or correction was performed and that does not conceal or alter prior entries.(4) This section does not create or provide a basis for a civil cause of action for damages.History: Add. 1986, Act 184, Eff. Mar. 31, 1987 ;-- Am. 1992, Act 210, Imd. Eff. Oct. 5, 1992 © 2009 Legislative Council, State of Michigan</blockquote> I will be giving some attention to try to make this well-deserved penalty the Law of the Land for electronic medical records. -- SS

In Michigan, Intentional Alteration of Medical Records is a Felony

I addressed the issue of alteration of electronic medical records and the dearth of truly meaningful penalties at posts such as:"Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Mig…

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01 Dec 2011

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

Propofol and Other Drug Questions: Was Michael Jackson a UPMC Patient at the Same Time as Samuel Sweet?

At my Sept. 24, 2011 post "<a href="http://hcrenewal.blogspot.com/2011/09/sweet-death-that-wasnt-very-sweet-how_24.html">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>" I wrote a detailed summary of a civil medical malpractice Complaint regarding possible electronic chart alteration. As I pointed out, that Complaint made EMR metadata visible to laypeople for the first time that I am aware. A new docket has appeared in that case entitled "Interrogatories to Defendant" from Attorney/physician Deborah Maliver dated Sept. 27, 2011. This document is publicly downloadable from the Pittsburgh Prothonotary Office Civil Docket site <a href="https://dcr.alleghenycounty.us/SelectCaseID.asp?filename=Welcome.htm&NoLoginRequired=yes" target="_blank">at this link</a>, case #GD-09-019407, document #55, or at my cached version <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/lawsuits/Sweet_second_omnibus_discovery_request_vol1025000001C2.pdf">at this link</a> (PDF). It brings up questions of even greater concern to me as a physician, those of mysterious drug orders for powerful sedatives such as propofol, fentanyl and etomidate. Apparently the metadata makes it difficult to account for what could be questioned as "over-generous" dispensing of those drugs. (This is ironic, since the trial of the doctor who administered this drug to deceased singer Michael Jackson has itself <a href="http://www.washingtonpost.com/national/after-jurors-hear-of-michael-jacksons-promise-pain-manslaughter-trial-moves-into-2nd-day/2011/09/28/gIQA037n3K_story.html">just gotten underway</a>.) Here is the first interrogatory request listing numerous drugs: <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhz5UUn1fAdqG_C4hgdKbsZVqd8nSvaKZ-Qzu4FIOmkQwUaBnawjjlNLqYhEhlZ4JzBH7dv6EOtqPw01aQI-_eN2D5PNICxR-BX3ZRVqPDx8r37ZrUyUOqTQWsnTTx2od_CB4JegU-H1zu_/s1600/req_drugs.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5657422163070212418" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhz5UUn1fAdqG_C4hgdKbsZVqd8nSvaKZ-Qzu4FIOmkQwUaBnawjjlNLqYhEhlZ4JzBH7dv6EOtqPw01aQI-_eN2D5PNICxR-BX3ZRVqPDx8r37ZrUyUOqTQWsnTTx2od_CB4JegU-H1zu_/s320/req_drugs.jpg" style="display: block; margin: 0px auto 10px; text-align: center; cursor: pointer; width: 320px; height: 205px;" /></a>Question 1. Request for full metadata on these drugs (click to enlarge) </div> See Exhibit "A" from the new Interrogatory docket below, as produced in discovery earlier, and download the new Interrogatory in its entirety to see the questions asked about the other metadata: <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEifbEyA4JmFHLDEi9l7jeLeR49Edosxc81jdxE8L2ehKi0mo1XxAte2xJaH6Q9QY5MPjfgexHoFATqrU53bjf2ofDh3OsrQA00GJ4BRNAfAxpn1AZ6CXLa4QqK4KI0UHnQKWgWnGAnwkkjb/s1600/propofol.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5657414336191328802" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEifbEyA4JmFHLDEi9l7jeLeR49Edosxc81jdxE8L2ehKi0mo1XxAte2xJaH6Q9QY5MPjfgexHoFATqrU53bjf2ofDh3OsrQA00GJ4BRNAfAxpn1AZ6CXLa4QqK4KI0UHnQKWgWnGAnwkkjb/s320/propofol.jpg" style="display: block; margin: 0px auto 10px; text-align: center; cursor: pointer; width: 381px; height: 221px;" /></a>Exhibit "A". McKesson drug cabinet dispenser audit trail. Five 100-ml vials of <a href="http://en.wikipedia.org/wiki/Propofol">propofol</a> in a row from May 14-May 15? <a href="http://en.wikipedia.org/wiki/Lorazepam">Lorazepam</a> (ativan), propofol and <a href="http://en.wikipedia.org/wiki/Etomidate">etomidate</a> on May 15-16 at a time when a patient had a deteriorating respiratory status? (These drugs suppress the respiratory drive.) Click to enlarge. </div> Question 4 is particularly disturbing: <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjlvErAEhoZ4kZTtYw4FQaahTK0l6pLTMpEiGMrkaERDnxCmpUGzhHHC3yqQ8hOCkcCri22GT_FK9t8Gneg1k4seXSmeUfX3Qvl1o0beyx6fHzz6sc5JX5rKEJNBiUXW_R7seh8HF8Np26H/s1600/do_not_appear.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5657423242222664578" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjlvErAEhoZ4kZTtYw4FQaahTK0l6pLTMpEiGMrkaERDnxCmpUGzhHHC3yqQ8hOCkcCri22GT_FK9t8Gneg1k4seXSmeUfX3Qvl1o0beyx6fHzz6sc5JX5rKEJNBiUXW_R7seh8HF8Np26H/s320/do_not_appear.jpg" style="display: block; margin: 0px auto 10px; text-align: center; cursor: pointer; width: 380px; height: 147px;" /></a>(click to enlarge) <div style="text-align: left;"> Apparently none of these drugs appeared in the eMAR system, the electronic medication administration record. Where did they go? I hope the full audit trails will show a definitive final disposition of these drugs. One would hope a highly computerized medical center could keep track of its inventory of drugs of powerful potential for abuse with 100% certainty, <a href="http://en.wikipedia.org/wiki/Chain_of_custody">chain-of-custody</a> style (that means, 0% guesswork): <blockquote>Chain of custody (CoC) refers to the chronological documentation or paper trail, showing the seizure, custody, control, transfer, analysis, and disposition of evidence, physical or electronic.</blockquote> </div></div>This is of concern to me as a former Occupational Medicine physician (in the transit industry) and a physician in general. I've seen drug abuse result in train wrecks - literally. Drug abuse/failure to be able to track disposition in a hospital would represent a prima facie public health menace. There are also questions about whether users of the EMR signed in or used the accounts of other individuals, which is another weakness of the EMR. No handwriting to evaluate... -- SS 10/24/11 Addendum: Here is a horrible example of what can go wrong when drugs of abuse potential are not tracked with the utmost of rigor: <blockquote>Star Tribune/Minneapolis <a href="http://www.startribune.com/local/minneapolis/132140228.html">Abbott Northwestern patient left 'writhing in pain' sues</a> "Hi, love," Sarah May Casareto greeted Larry V. King as he lay on a gurney before surgery. As they wheeled down the hall, he recalled in court records, she told him that he'd have to "man up" because they couldn't give him a lot of medication. The next 57 minutes of surgery were excruciating, according to a lawsuit filed Tuesday in Hennepin County District Court that accuses the drug-addicted former nurse of skimming his narcotics, which left him "writhing in pain" during a medical procedure for kidney stones last year at a Minneapolis hospital. Casareto, of Forest Lake, entered an Alford plea of guilty Sept. 1 to a fifth-degree controlled substance crime for possessing Fentanyl, a high-powered painkiller, and was sentenced to probation in connection with the Nov. 8 incident at Abbott Northwestern Hospital. The plea enabled Casareto to maintain her innocence while acknowledging ample evidence to convict her. The suit, which seeks at least $50,000 in damages, alleges that she was "negligent and careless" in her care for King, 57, of Bloomington. The suit also names Abbott as a defendant. It contends that Abbott "knew or should have known [before the procedure] that Casareto was exhibiting drug-seeking behavior and that she had become dependent upon narcotic pain medications." It also notes that Abbott officials knew that she had failed "on at least six different occasions" to properly handle patients' pain medication obtained from the hospital pharmacy. King's attorney, Tony Nemo, called the lawsuit reflective of "a growing problem" that should draw closer scrutiny to drug diversion, or the theft of medications intended for patients. "One of the things I know Mr. King is hoping is that this case may cause Twin Cities hospitals to reveal procedures and protocols to, if not prevent, at least minimize this problem in the future," he said.</blockquote> I wonder if information technology problems regarding tracking of drugs with abuse potential existed. Read the whole article at the above link. -- SS

Propofol and Other Drug Questions: Was Michael Jackson a UPMC Patient at the Same Time as Samuel Sweet?

At my Sept. 24, 2011 post "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" I wrote a detailed su…

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28 Sep 2011

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

The world of electronic medical records is very secretive. Vendors will not allow their programs or data structures to be examined, even by the academic community. Their products, medical devices, are not vetted by regulatory agencies such as the FDA for quality. Patients and clinical personnel are supposed to take the word of the seller that these systems are fit for purpose and of high quality. A window into the internal working of EMR's was initiated Down Under just this year, in the form of a detailed internal analysis of an ED EMR product from America slated for roll-out in public hospitals in one of Australia's most populous states. Dr. Jon Patrick of the University of Sydney performed this work. He was not happy with what he found, in terms of software engineering, human computer interaction, and other issues related to fitness for purpose. See <a href="http://sydney.edu.au/engineering/it/%7Ehitru/index.php?option=com_content&task=view&id=120&Itemid=116">here</a> and <a href="http://sydney.edu.au/engineering/it/%7Ehitru/index.php?option=com_content&task=view&id=91&Itemid=146">here</a>. (For more on healthcare IT difficulties, see "Contemporary Issues in Medical Informatics: Common Examples of Healthcare Information Technology Difficulties" at this link: <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/">http://www.ischool.drexel.edu/faculty/ssilverstein/cases/</a>.) One component of the healthcare IT "ecosystem" many have been unable to see, which is perhaps even more carefully guarded than the program code and data structures, is the metadata on EMR use. A remarkable development has now changed that metadata secrecy - a public civil lawsuit court docket. Metadata is "data about data." In this context, that means data about who accessed the EMR, what they did, when they did it, from where they did it, etc. Perhaps it should be deliberately misspelled as "meatdata." It allows the "legible gibberish" (see my Feb. 2011 post "<a href="http://hcrenewal.blogspot.com/2011/02/electronic-medical-records-two-weeks.html" target="_blank">Electronic Medical Records: Two Weeks, Two Reams</a>" for more on that term) produced by the clinical side of EMR to be better weaved into meat, that is, a medical narrative that is essential to truly understanding a case. I noted the unfortunate case of Samuel Sweet at the University of Pittsburgh Medical Center (UMPC), as reported by Sean Hamill in the Pittsburgh Post-Gazette: <blockquote><a href="http://www.post-gazette.com/pg/11262/1175874-114.stm" style="font-weight: bold;" target="_blank">Trial to begin in wrongful death claim</a> Monday, September 19, 2011 By Sean D. Hamill, Pittsburgh Post-Gazette As far as Samuel Sweet was concerned, he only had a headache. It was a bad one, but nothing more, maybe something his chiropractor could fix with a little adjustment. But three days after being admitted to UPMC Presbyterian for what his family was told was a treatable amount of bleeding on the brain, and six hours after his family saw him laughing and chatting about the Penguins' playoff chances, early in the morning of May 16, 2009, Mr. Sweet died unexpectedly. Why he died is the subject of a civil case his family filed a few months later ... [Plaintiff's attorney] Ms. Maliver [actually Dr. Maliver, as she holds both the JD and MD degrees - ed.] said UPMC's timeline came into question in early August 2011, when UPMC finally turned over -- after two years of discovery [i.e, they turned them over at the last minute, a few weeks before trial was scheduled to begin - ed.] -- 1,200 pages of "results detail sheets" which show not only when something was written in Mr. Sweet's electronic chart, but who wrote it and how. [The patient died when there was a delay in treatment due to marked difficulty in putting a breathing tube into his lungs (a difficult intubation) when he developed respiratory failure. The defendants possibly never expected someone to actually comb through the 1,200 pages of "results detail sheets" on such a short time frame, but, apparently, the plaintiff's attorney took on the challenge - ed.] So, for example, Ms. Maliver alleges that the results detail sheets show that during the 21 minutes before Mr. Sweet was said to stop breathing, none of the information in his chart is straight from the computer monitors that would tell what his vital signs were during that period. But the results detail sheets also show something more troubling, Ms. Maliver said. She said she found evidence that three days after Mr. Sweet died, Dr. Richard Simmons, UPMC Presbyterian's head of quality assurance, tried to put a "Diff Intub" [difficult to intubate, due to anatomy - ed.] red-letter warning on Mr. Sweet's electronic medical record. That effort showed up on the results details sheets, according to Ms. Maliver. Such a warning would tell ["alert" would be a more precise term - ed] anyone who opened the record that Mr. Sweet was difficult to intubate. </blockquote>As a result of this newspaper story, the defendants filed a complaint with the judge, who ordered a six month delay in further proceedings. The complaint and decision is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/lawsuits/sweet_v_upmc_delay.pdf">at this link</a> (PDF). In further investigating what I considered a remarkable story, I came across a public docket Dr. Maliver filed on behalf of her clients in the case, "PLAINTIFF'S MOTION AND SUPPORTING BRIEF TO AMEND COMPLAINT TO SEEK PUNITIVE DAMAGES". As I mentioned previously, this is a remarkable development that has opened a window on metadata secrecy. This is freely and publicly downloadable from the Pittsburgh Prothonotary Office Civil Docket site <a href="https://dcr.alleghenycounty.us/SelectCaseID.asp?filename=Welcome.htm&NoLoginRequired=yes" target="_blank">at this link</a>, case #GD-09-019407 , document #40 of 09/02/2011. (I have also cached the document at this link: <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/lawsuits/complaint_punitive_damages_vol101400000177.pdf" target="_blank">http://www.ischool.drexel.edu/faculty/ssilverstein/cases/lawsuits/complaint_punitive_damages_vol101400000177.pdf</a> .) As I mentioned in the aforementioned post, I found the hospital attorney's explanation of apparent tampering somewhat troubling: <blockquote>Dr. Simmons wasn't trying to alter the record, [attorney for the defendants] Mr. Conti said; instead he was in Mr. Sweet's medical record as part of the "peer review" process, assessing what happened in Mr. Sweet's case. As part of that, he was in the medical record three days after Mr. Sweet died trying to figure out how one would create a warning about a patient's difficult intubation [in effect, altering the record, at the very least through creation of a confusing audit trail - ed.], Mr. Conti said. </blockquote>The public nature of the "PLAINTIFF'S MOTION AND SUPPORTING BRIEF TO AMEND COMPLAINT TO SEEK PUNITIVE DAMAGES" document makes it possible for the public to look at some of the actual metadata to see for themselves what might have occurred. Again, this is remarkable and is the first time I am aware of when the public (and the academic Medical Informatics community, of which I am a part) gets to "peek behind the curtain" of an EMR's metadata. Let's take a look. I will summarize relevant part of the Motion and intersperse testimony and metadata from the actual record of Mr. Sweet (again, from a now-public court document). The purpose of the Motion was to seek punitive damages: <blockquote> A. SEEKING PUNITIVE DAMAGES (1) This is a civil action for medical malpractice in which the Plaintiff alleges in essence that Samuel Sweet, a relatively healthy man of only 62 years of age, needlessly suffocated to death in the intensive care unit at UPMC after undergoing a routine cerebral angiogram when, the following day, physicians recklessly and prematurely pulled out his breathing tube and then could not get it back in when it became obvious Mr. Sweet would die without it. (2) This case is listed for trial on September 19, 2011, and discovery has just concluded. (3) In light of the evidence adduced in discovery, the Plaintiff seeks to amend the Complaint to re-characterize Defendant Murugan's and Defendant actions and inactions as willful, wanton, reckless and not merely negligent. The Plaintiff similarly seeks to amend the ad damnum clause against these defendants to include a request for punitive damages because of their shocking and reckless disregard for Mr. Sweet's welfare and their attempts to alter the appearance of the medical records, in full awareness of Mr. Sweet's brain death, so as to obscure what really happened. </blockquote> It is the last part of count A.(3) I will address here, a quite serious charge involving medical record evidence spoliation, which is specifically forbidden in Pennsylvania by the <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) and other regulations. Of importance, the Motion continues: <blockquote>... (15) UPMC has a special warning system that is intended to serve the very purpose of alerting all medical providers of a patient with a difficult airway. The way it works [as UMPC defendants testified under oath - ed.] is the attending physician, writes up the problem list for the patient and need only put difficult airway in the list, and this will trigger a special yellow banner to pop up on the patient's computer files for all to see every time the chart is opened and every time any page is viewed. Not only that, but then the words "difficult airway"appear in red text within the yellow banner, and this puts the viewers on notice to check the anesthesia record as to how intubation was done successfully in the past, so they can replicate the successful technique.</blockquote> This patient was extubated after a procedure to check for brain bleeding, but by late at night it became obvious he could not breathe adequately on his own, and needed to be re-intubated. Let's see how a chart appears with, and without the banner about a patient being difficult to intubate (due to their mouth and air-passage anatomy): <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjepsPEUxRQrIrssZIL9cYrrRT64dcuyXhRbKbQi66MSYxU8mDE0bByXZDP5P_R8jSj67Kg5i3nthaFPW9qjmFJsoflVAiHZy832W8ZaaRUEd9mjs7k0xCbtpLxZfaI-7SqJ1moanOTSFNW/s1600/banners.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656026922887887554" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjepsPEUxRQrIrssZIL9cYrrRT64dcuyXhRbKbQi66MSYxU8mDE0bByXZDP5P_R8jSj67Kg5i3nthaFPW9qjmFJsoflVAiHZy832W8ZaaRUEd9mjs7k0xCbtpLxZfaI-7SqJ1moanOTSFNW/s320/banners.jpg" style="cursor: pointer; display: block; height: 222px; margin: 0px auto 10px; text-align: center; width: 379px;" /></a>Real Electronic Medical Record screen of Mr. Sweet lacking warning banner, above; fictitious chart showing banner, below. [Why wasn't it the fictitious patient chart that was fiddled with? - ed.] Click to enlarge.</div> Such a warning apparently did not appear in Mr. Sweet's EMR chart, and that along with other failed communication (which can be read in the Motion) led to the re-intubation difficulties, and ultimately death. (I should note that it's possible the clinicians did flag the "difficult intubation" condition, but that the EHR lost the data through relational integrity problems, i.e., the information became "orphaned" from the patient's records, although still existing in the system somewhere.) <blockquote>(27) ... not one person knew that there was a note from anesthesiology containing a road map for success, that included the use of a "Fast-Track LMA device", neither of which was ever brought in for Mr. Sweet that night when he needed the tube to be put back in. <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh2z4gOB0Q3lp2hrp57VVP_Ftbvf5LPbbQvUHMjDDu1mX33eJ8EiengqExqOgqRYD5ZMDuu_QwjIlW-r_0nEM5_2PsnWw-sGt9TK9jBUPZzbXIhYB6g4TsERT83SUa3nuPidqpgYhu2T7Hp/s1600/exhibit_E_how_banner_gets_there.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656022205793766226" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh2z4gOB0Q3lp2hrp57VVP_Ftbvf5LPbbQvUHMjDDu1mX33eJ8EiengqExqOgqRYD5ZMDuu_QwjIlW-r_0nEM5_2PsnWw-sGt9TK9jBUPZzbXIhYB6g4TsERT83SUa3nuPidqpgYhu2T7Hp/s320/exhibit_E_how_banner_gets_there.jpg" style="cursor: pointer; display: block; height: 254px; margin: 0px auto 10px; text-align: center; width: 320px;" /></a>Exhibit E. Under Oath. "A designation of difficult intubation automatically appears on a patient's banner bar if it is entered as a problem on the Problem List by the user selecting it from a drop-down menu list." (I tend to have doubts the problem list is that intelligent, but this is what was testified.) Click to enlarge.</div> Sworn testimony indicates nobody took the appropriate actions to enable the alert to appear on the EMR screens: <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEix2t2DuFqy6bgmlNvyHCD75TVDQxgRh3bEDxsbSjAjSTPB6W7bH1r-GzRLh6CCmB0iRTGYJ7EVUq70C7plb19dATP-Z1uqLc0VKTudlwi6R6jl8O3ohUU-ruV8wyeW01CvZnhakp5DwW2u/s1600/no_one_ordered_alert.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656031663479819794" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEix2t2DuFqy6bgmlNvyHCD75TVDQxgRh3bEDxsbSjAjSTPB6W7bH1r-GzRLh6CCmB0iRTGYJ7EVUq70C7plb19dATP-Z1uqLc0VKTudlwi6R6jl8O3ohUU-ruV8wyeW01CvZnhakp5DwW2u/s320/no_one_ordered_alert.jpg" style="cursor: pointer; display: block; height: 231px; margin: 0px auto 10px; text-align: center; width: 326px;" /></a>Admitted under oath. Nobody did what it would take to make a "difficult intubation" alert appear on Mr. Sweet's chart. Click to enlarge. </div> As a result of this missing data, the "syndrome of overconfidence in computers", and the toxic effect of poorly done health IT impairing clinician-clinician communications, physicians seeing this patient when he was under duress admit under oath they did not know of this intubation problem: <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjJqIMyDrvvOYbOYgTR2iCeVPSBmx7qgbxzuBv3AN90MydUlouZIDByaCo-zMAazRMr6ApCuVu57Na1lGGVfh7U-jKTFixEFoUh0E-W9OmJB7aG8BB5u50dU0ryXhbPmIAQD4Hk_c_Znh6F/s1600/kaura_didn%2527t_know.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656032339134827378" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjJqIMyDrvvOYbOYgTR2iCeVPSBmx7qgbxzuBv3AN90MydUlouZIDByaCo-zMAazRMr6ApCuVu57Na1lGGVfh7U-jKTFixEFoUh0E-W9OmJB7aG8BB5u50dU0ryXhbPmIAQD4Hk_c_Znh6F/s320/kaura_didn%2527t_know.jpg" style="cursor: pointer; display: block; height: 256px; margin: 0px auto 10px; text-align: center; width: 363px;" /></a>Dr. Kaura didn't know. Click to enlarge.</div> <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgbTxrAmyhpOQeGV7mPEdKXcMLBlI3Hk0uCJELiaUn752ZsI9DZzNAkeVrpjX3jy2JJT6WnBNGnAL_4_f5JbEV7fUIwos_upTAr1MZWH4g4C1VOzJpo93bAVUzw1OSuzJw1MdA3MR5C-nFR/s1600/sappington_didnt_know.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656032394544316706" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgbTxrAmyhpOQeGV7mPEdKXcMLBlI3Hk0uCJELiaUn752ZsI9DZzNAkeVrpjX3jy2JJT6WnBNGnAL_4_f5JbEV7fUIwos_upTAr1MZWH4g4C1VOzJpo93bAVUzw1OSuzJw1MdA3MR5C-nFR/s320/sappington_didnt_know.jpg" style="cursor: pointer; display: block; height: 112px; margin: 0px auto 10px; text-align: center; width: 344px;" /></a>Dr. Sappington didn't know. Click to enlarge.</div></blockquote> This is bad enough. The post-mortem chart fiddling issues I am addressing here begin with this: <blockquote> C. (39) In the present case, after rounds of complex discovery battles, it became apparent that UPMC altered the records ... in this case, much of the record alteration was conducted by quality assurance officer, one Dr. Richard Simmons. (40) Once the brain death of Mr. Sweet was known, a wave of record alteration and supplementation occurred, largely though not exclusively at the behest of Dr. Simmons ... (41) For example, after Mr. Sweet was dead, when it could obviously not benefit his medical care, Dr. Simmons entered Mr. Sweet's computerized medical record, clearly looking into whether there had been a proper yellow-banner warning created through a problem list (which, of course, there was not). </blockquote> Again, these are serious charges. Why would the plaintiff attorney raise these charges? Let's look at some metadata: <blockquote style="font-weight: bold;"> <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh9ry71dCSwp2Rt4JWNQ5UkIjlPIHVAiZDix555U1xxV52g2vf-tAtv2UvtKNySvIgOrvQmWRPz3yy2bNnAnLLKSderTTx9WNWEqnGwXR8ouK_MvUDDspG-TypMgdiHxpsqw34qeSfN130u/s1600/Exhibit_K_simmons_postmortem_gap_audit_trail.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656353477734292466" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh9ry71dCSwp2Rt4JWNQ5UkIjlPIHVAiZDix555U1xxV52g2vf-tAtv2UvtKNySvIgOrvQmWRPz3yy2bNnAnLLKSderTTx9WNWEqnGwXR8ouK_MvUDDspG-TypMgdiHxpsqw34qeSfN130u/s320/Exhibit_K_simmons_postmortem_gap_audit_trail.jpg" style="cursor: pointer; display: block; height: 272px; margin: 0px auto 10px; text-align: center; width: 363px;" /></a>Exhibit K, showing quality assurance officer Dr. Simmons fiddling with Mr. Sweet's chart on May 19th several times during the day, as well as on the 22nd. Note circled entries. Note the gap (labeled) and the time of the last entry on the 19th, 15:23. Also note all these dates are post mortem by several days; death was on the 16th. Also note the times of entry, and the part of the chart accessed in the second round of accesses on May 19th - including "problem list" at 15:02. Click to enlarge. </div></blockquote> I note that we are left to wonder what happened between access round two by the QA Officer on May 19 beginning 15:01 PM, and round three on May 22 at 14:03 PM. (Where are data for May 19th after 15:23 and May 20th and 21st, I wonder as well? This was not a weekend but midweek ...) The Motion continues: <blockquote>(42) Thereafter, even though Mr. Sweet was now long dead and such action could do him no good, Dr. Simmons tried to create a problem list that had originally been omitted by Defendant. He listed a difficult airway as the problem (even though obviously Mr. Sweet's problem list would have included many things, such as having undergone an angiogram and a minor cerebral bleed). In other words, Dr. Simmons tried to take the action necessary to make the computer show the yellow banner warning that was missing. </blockquote> Here's more metadata seemingly supporting this statement. It's clear that nobody, including especially someone in Dr. Simmons' role should have been doing ANYTHING to the data that would or could raise suspicion of alterations via the metadata, such as times. Surely a presumably competent senior physician in a peer review role would have known this. (I also note, shouldn't the record have been electronically "locked" by several days after death, thus causing any changes after the lock to appear in the normal "give us the legal medical record" outputs, not just in metadata?): <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiXp5-CufdtW2vq7LB8vCaVfHom0JtTXDV4aQpAqfn9WpAwEh4uEHsJCT5GZRUll_IaBglaLLenJxJiiYFuMXZIYfEuHHqueKq7gggilXdJUmrS5VBRzhV3SWMAA20QxXpgKn0oiOp_tBY7/s1600/problem_history.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656028439347558466" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiXp5-CufdtW2vq7LB8vCaVfHom0JtTXDV4aQpAqfn9WpAwEh4uEHsJCT5GZRUll_IaBglaLLenJxJiiYFuMXZIYfEuHHqueKq7gggilXdJUmrS5VBRzhV3SWMAA20QxXpgKn0oiOp_tBY7/s320/problem_history.jpg" style="cursor: pointer; display: block; height: 266px; margin: 0px auto 10px; text-align: center; width: 353px;" /></a>Exhibit L. Metadata showing Dr. Simmons on May 19th in the drop-down menu to make a problem list - then retracting it ("active --> cancelled") shortly afterwards. (I note the apparent cancellation time of 3:24 PM, i.e., 15:24, is just after the final May 19th entry of 15:23 on Exhibit K, when the several-day "gap" begins. I also note the patient died on May 16th. Curious... ) Click to enlarge.</div> But problems apparently occurred: <blockquote> (43) It did not work. The yellow banner would not appear retroactively onto the otherwise completed record although he did succeed in altering the original record to look like there had always been a problem list. Further, during review of the "detail sheets," the Plaintiff discovered that Dr. Simmons, having failed to create a banner warning, tried to then delete or undo what he had attempted, but could not get it out of the computer tracking system. See Exhibit L hereof. </blockquote> Let's look at the next part of Exhibit L: <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgaar_8PLLPXJLjGIzHH8Vm6yaDQ_dcQUYcVqGXQ32HqWFrGRq9qvujhEgYkCTpMluJRAYZw9G4BfyNajfWv5Y-43H7pOVC-FEmtX9nzkWWOQC_uzlq5WzqwyCLHrYtA2-I16YWUb1_CkiY/s1600/problem_list.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656029408970613938" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgaar_8PLLPXJLjGIzHH8Vm6yaDQ_dcQUYcVqGXQ32HqWFrGRq9qvujhEgYkCTpMluJRAYZw9G4BfyNajfWv5Y-43H7pOVC-FEmtX9nzkWWOQC_uzlq5WzqwyCLHrYtA2-I16YWUb1_CkiY/s320/problem_list.jpg" style="cursor: pointer; display: block; height: 414px; margin: 0px auto 10px; text-align: center; width: 311px;" /></a>Note the postmortem date of 5/19/2009 on this "problem list", and the attempted cancellation, presented as evidence. Note the time of the Problem list addition - 3:02 PM (i.e., 15:02 as in exhibit K above). Canceled as above at 3:24. Someone in Dr. Simmons' position should not have been fiddling with the problem list, knowing (or should have known, or should have made it his business to know) that footprints of fiddling in the metadata would, at the very least, raise eyebrows. Click to enlarge.</div> This does not look like the metadata that would be generated by peer review that I myself would perform ... In summary, this unique Motion containing actual EMR metadata is, in my personal view, suspect for 1) imprudent post-death fiddling with the EMR records at best, and/or 2) attempts to alter the EMR to unjustly protect those who caused harm to come to this patient at worst. I do not know which occurred, but hospital attorney Conti's excuse that "Dr. Simmons was in the medical record three days after Mr. Sweet died trying to figure out how one would create a warning about a patient's difficult intubation" [that is, entering new data not present before - ed.] could be either: <ul><li>A sign of lack of computer and legal savvy of a senior clinician/UPMC Presbyterian's head of quality assurance, but whose intentions were pure, as explained above; or</li><li>The confabulations of an attorney caught with his pants down.</li></ul> My personal opinion? Want to buy a bridge in Brooklyn, members of the jury and Your Honor? <div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiub9uKGChN-bDJ46C8KLfqBpWMWV6CdN9TlYfMpMyYp4Qox50KotMPgBYNpTjYAaGOtMYY8vagPv_yayC-bgcmQryqP2jxMMiABdM-ERAKVF72cDuUCVUVPaHzF0gRsLH3qPHe28asMV1Z/s1600/brooklyn-bridge.jpg"><img alt="" border="0" id="BLOGGER_PHOTO_ID_5656030708798404066" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiub9uKGChN-bDJ46C8KLfqBpWMWV6CdN9TlYfMpMyYp4Qox50KotMPgBYNpTjYAaGOtMYY8vagPv_yayC-bgcmQryqP2jxMMiABdM-ERAKVF72cDuUCVUVPaHzF0gRsLH3qPHe28asMV1Z/s320/brooklyn-bridge.jpg" style="cursor: pointer; display: block; height: 210px; margin: 0px auto 10px; text-align: center; width: 280px;" /></a>NY bridge for sale. Cheap.</div> The following also does not favorably influence my interpretation of the metadata: <blockquote> (44) It is noteworthy that, prior to producing these results detail sheets that indicated such changes, UPMC attempted to file a motion for a protective order to bring all further discovery to a halt (a motion which was denied) even though the discovery deadline had not yet arrived. </blockquote> Obviously, this is not for me to decide and will need to await court adjudication, but as a Medical Informatics specialist and someone with some investigative experience regarding computers and medicine, I am not happy with the looks of this. I report, you decide. There were other allegations in this plaintiff's Motion, again based on clinical IT metadata, regarding: unaccounted-for drugs of potential abuse (e.g., sedative <a href="http://en.wikipedia.org/wiki/Propofol">propofol</a>, the drug that <a href="http://www.foxnews.com/entertainment/2009/07/28/officials-believe-jacksons-doctor-gave-drug-killed-michael-jackson/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%25253A+foxnews%25252Fentertainment+%28FOXNews.com+-+Entertainment%29">killed Michael Jackson)</a>, the entry of fictitious data (such as vital signs, timing and medication administration by others including nurses), dictations coerced out of junior staff by senior personnel that might have been "spun" favorably to the medical center, etc., but those are the subject of later posts. I again repeat the six-month delay in this case could potentially leave various problems with this EMR system unexposed and unremediated. This could unnecessarily expose the public to six more months of risk. Addendum: if UPMC or the vendor take issue with posting of this material due to IP or other issues such as health IT gag clauses (which by the way are signed by hospital executives in violation of Joint Commission Safety Standards per my 2009 <a href="http://jama.ama-assn.org/content/302/4/382.1.extract">JAMA letter here</a> and longer essay <a href="http://hcrenewal.blogspot.com/2009/03/health-it-hold-harmless-and-defects-gag.html">here</a>), contact the Prothonotary Office in Pittsburgh, not me. -- SS Addendum: What type of person was Mr. Sweet? This type: <blockquote> Samuel E. Sweet Jr. Cheswick Samuel E. Sweet Jr., 62, of Cheswick, died Saturday, May 16, 2009, at UPMC Presbyterian Hospital. He was born Dec. 9, 1946, in New Kensington, son of the late Samuel E. Sweet Sr. and Marjorie (Secrist) Sweet. He was a resident of Cheswick for 33 years. He worked for the Army Corps of Engineers at Lock No. 2 of the Allegheny River and served in the Marine Corps during the Vietnam Era. He was a member of Hoboken Presbyterian Church, Blawnox Sportsmen Club, Blawnox "A" Club and the Springdale VFW. He enjoyed gardening and cutting grass. Survivors include his wife, Janet A. Sweet; sons, Samuel E. "Chip" (Michele) Sweet III, of Natrona, and William E. (Tracy) Sweet, of Edgewood; granddaughters, Kristin Ruff, of South Carolina, and Virginia Sweet, of Natrona; brother, John Thomas (Debbie) Sweet, of Warren; and nieces and nephews. Friends received from 2 to 6 p.m. Monday only, at the THOMAS M. SMITH FUNERAL HOME AND CREMATORY LTD., 930 Center Ave., Blawnox, followed by a funeral service at 7 p.m. in Hoboken Presbyterian Church, 921 North Ave., Blawnox, PA 15238. In lieu of flowers, the family respectfully suggests memorial contributions to Hoboken Presbyterian Church. </blockquote>-- SS Addendum: This case <a href="https://dcr.alleghenycounty.us/DisplayImage.asp?gPDFOH=vol1089%20%20%20%20%20%20%20%20%20%20%20%20%20000002FF&CaseID=GD-09-019407&DocketType=PETOR&SeqNumber=79" target="_blank">was settled before going to trial</a> for $1,375,000. -- SS

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

The world of electronic medical records is very secretive.Vendors will not allow their programs or data structures to be examined, even by the academic community. Their products, medical devices…

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24 Sep 2011

On Penalties for Alteration of Electronic Health Records

I am increasingly hearing stories of alleged alterations occurring in electronic medical records. Since there is no permanent paper record in an increasing number of facilities, some might believe digital alterations might be easier to get away with. Not so, according to S. Sandy Sanbar, MD, PhD, JD, FCLM in a <a href="http://www.ablminc.org/Model_Curriculum_LMME_2010/BOOK_Legal%20Medicine-7th_2007/Ch34-Medical%20Records,%20Paper%20and%20Electronic.pdf">book chapter partly on advantages and disadvantage of electronic records</a> (PDF) from the American Board of Legal Medicine, <a href="http://www.ablminc.org/">http://www.ablminc.org/</a>: <blockquote>Alteration, Destruction, or Loss of Medical Records ... no entry in the medical record should ever be altered or backdated. In the law of evidence, the loss, destruction, or significant alteration of evidence is termed “spoliation of evidence.” Thus, when medical records that have been altered, or had portions removed, or cases in which the record cannot be found come before the court, the evidentiary concept of spoliation of evidence is invoked. The common law evidentiary inference concept or remedy for spoliation is explained by Wigmore as an indication that the spoiler’s case is weak, and “operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause” (2 Wigmore (3d ed. 1940) §278 p. 120 (emphasis added). [25] Therefore, alterations to records can prove to be disastrous. Records with alterations are absolutely deadly in court. Document examination is now a sophisticated science. With skill and uncanny accuracy, experts may be able to determine the time that entries were made in medical records and who made them. [26] [Electronic records can greatly facilitate this process, and there are specialty companies with the forensic expertise to analyze EMR data for tampering - ed.] Courts reason that destroying or altering records in anticipation of or in response to a discovery request falls under the umbrella of misuse of discovery. Discovery rules provide a broad range of sanctions for the misuse of discovery. Sanctions can include monetary fines, contempt charges, establishing or precluding the facts at issue, striking pleadings, dismissing all or parts of the action, and even granting a default judgment against the offending party. In addition to these evidence and discovery sanctions, many penal codes include criminal penalties for perjury and spoliation. [27] In several jurisdictions, spoliation of evidence itself is a cause of action in tort. [28] Therefore, tampering with medical records may make malpractice cases impossible to defend. Further, providers who falsify a patient’s record may be found civilly and criminally liable. Proof of such charges will result in loss of hospital privileges and even loss of license to practice [29].</blockquote> As I look for new avenues to explore regarding the legal EHR, which is an interest of mine (having supervised a Johns Hopkins postdoc's thesis on that topic), gaining expertise in EHR alteration detection is a prime area for me. Another good source of information on this topic is a new book "Basics of e-Discovery", PA Bar Institute, PBI number 2010-6139. Unfortunately, the book is not free, but is available in law libraries such as the library at my university, Drexel: <blockquote> EARLE MACK SCHOOL OF LAW AT DREXEL UNIVERSITY LEGAL RESEARCH CENTER SUBJECT Civil and appellate procedure. TITLE Basics of e-Discovery. IMPRINT [Mechanicsburg, Pa.] (5080 Ritter Rd., Mechanicsburg 17055-6903) : Pennsylvania Bar Institute, c2010. DESCRIPT xii, 160 p. : ill. ; 28 cm. SERIES PBI ; no. 2010-6139. CALL NO. KFP537.5 .E4 B38 2010 LOCATION Legal Research Center Pennsylvania Collection</blockquote> It is my belief that EHR alteration, facilitated (or seemingly so) through the elimination of a permanent paper record, needs to uniformly carry very serious consequences, including permanent loss of involvement in clinical affairs, and incarceration. -- SS

On Penalties for Alteration of Electronic Health Records

I am increasingly hearing stories of alleged alterations occurring in electronic medical records.Since there is no permanent paper record in an increasing number of facilities, some might believe digi…

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