healthy4u: prior restraint

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

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