Diagnosing and Treating Legal Ailments of the Electronic Health Record: Previously Unpublished Postscripts

In the final edits of to the titular article, which can be found here, the authors and editors decided to separate these postscripts and post them separately. They were intended to capture important themes that became highlighted in the article proper over the course of the editing process.

Postscript 1: An Aspirational Outline

At the outset of this project, the authors set out a range of objectives with the understanding that not all could be accomplished but that certain key areas would address foundational fundamentals going forward. Reflecting that fundamentals approach, this paper focuses on the Release of Information Production interests of legal process, represented in our system of jurisprudence by support for the duty of lawyers to zealously represent their clients’ interests. Since interests in such primary principles as “authenticity” and “integrity” are shared by other end-users, our view is that a digital record that aligns, at a minimum, with legal process requirements also serves other individuals and entities.

We endeavored to highlight areas of priority interest and concern, and to facilitate greater directed due-diligence, marketplace transparency, and market pressures for better EHRs to succeed and for the EHR market to expedite improvements in tools that also support legal process, and are capable of supporting defined end-use requirements for authentic and accurate patient care records.

To these ends we are looking for:

1. A reality-based and correct manner (referencing known sensitivities and the current state of EHRs) in which we can:

a. determine

                         • an appropriate initial scope of records;
                         • an appropriate cycle for follow on records requests; and
                         • a logical model for approaching the relevance of systems
functions; and

b. produce

                         • appropriate initial and follow-on records releases
                         • in a form or forms reasonably usable by the requesting party.

2. This starts with:

a. assuring that the creation of records is sufficiently transparent,
including

  • that the origination and retention of records is sufficiently
transparent; and

                   • when applicable, that the receiving and retention of records is
sufficiently transparent

b. and assuring the maintenance of records is sufficiently transparent;

3. In a form (or forms) capable of

a. preservation;

b. search; and

c. production;

4. With means to assess the capabilities for preservation, search, and production;

5. With the objectives that requestors/users (representing different end uses and end-users), including any entity entitled to the information, can know how to properly (according to their use specifications)

a. request;

b. receive;

c. process; and

d. use the record.

6. Requestors and end users include:

a. the treating health care providers themselves,

b. patients,

c. other health care providers,

d. governmental agencies,

e. insurance companies,

f. lawyers,

g. tribunals, and

h. others entitled to the EHR.

Postscript 2: A Brief Reflection on
“Professionalism” vs. “Careerism”

In the course of developing this article, the authors found it useful to consider foundational assumptions. One such assumption is that there remains a place for the concept of the sovereign profession, updated to include increased transparency, collaboration, and accountability, especially for patient-directed care. Professionalism is not incompatible with careerism, except when advancement of one’s career is engaged to the detriment of integrity and duty to the patient. In the authors’ opinion, emphasizing professionalism over self-indulgent careerism would eliminate many harms and gaps observed today in EHRs.

As one author, writing in the context of discussions of the threat of the “medical industrial complex,” presciently forecast in 1983, “[t]he physician’s dominance of medical care, not balanced by consumer representation or social accountability, may have caused some of our problems in the past, but the newly emerging alternatives may create much worse ones.”

We now see what “creating much worse ones” looks like, as evidenced by the statistics for still-rising health care costs in an environment already featuring the highest national health care expenditures in the world, along with worsening statistics for both patient harms and outcomes.

Our hypothesis is that it remains the best option, with consumer representation and social accountability, to invest health care providers (especially doctors and nurses) with professional obligations to their patients that may not be delegated away by assigning responsibility to others, such as administrators and other employees or agents. In the context of the discussion at hand, this means that a trustworthy, complete, and transparent record, readily available for informing further care, showing exactly what was done and why, remains the duty of all clinicians who call themselves “professional.” This is the duty a clinical professional must execute for each and every one of his or her patients, and, in the context of this article, also constitutes a reasonable expectation embedded in law across jurisdictions. The clinician’s professional obligation to the patient requires it. The dissolution of accountability into a diffuse array of stakeholders, which leads to no accountability, is neither functional nor socially desirable.

The authors understand that health care accountability is an area of ongoing flux. We acknowledge that, in recent years, agents have stepped in between clinicians and patients, sometimes even backed by government power. We also note that, on the basis of patient safety alone, the extraordinary rise in patient harms requires that we, as a society, reinvigorate the “first, do no harm” pillar of a vital social function that risks further degradation into caveat emptor. As society navigates these waters, we offer this grounding challenge: If the above “buck stops here” hypothesis is considered erroneous, who then is the entity that holds that duty as we disassemble regulation, oversight, and consumer protection in the name of innovation? Indeed, if we invest the patient with that duty, who then has the duty to advocate and inform patients and families when, in the midst of suffering, their vulnerability exposes them to unrestrained, unregulated consumer predation, whether from “snake oil salesmen,” or the infrastructural governmental and non-governmental actors who aid and abet them?

We further hypothesize that there is functional and social value to renewing and reinvesting in the professional obligations of the legal profession, members of which also have a duty to serve the public good, along with doctors and nurses. Lawyers are officers of the court and bound by oath and professional standards to deal honestly and fairly not only with clients but with the court, opposing lawyer, opposing parties, and third parties such as witnesses or treating health care providers. By rule and by professional standards, the discovery process carries distinct obligations of cooperation, economy, and efficiency in dealing with all constituents and obligations to safeguard private and other protected information. Lawyers may not use advocacy as an excuse to harass, obfuscate, mislead, or unduly prolong the process. To be sure, not all lawyers meet these professional standards, and not all deviations are correctible or capable of remediation under current processes. Accordingly, transparency and clarity in the exchange of medical record information becomes even more important as a deterrent to abuse.

Here is how: If the health care provider keeps records that are understandable, organized, and capable of being produced in a reasonably usable format, and if the obligations for such production are uniform among the legal and medical fields, then the opportunities for conflict with the requesting party are reduced. If an offered EHR meets uniform requirements, the requesting party would need to justify the need to seek more or different information with the court and the court would have the ability to fashion protection against harassment, undue expense, etc. On the other side, if a requesting party is entitled to a complete record as described in uniform requirements, then all that needs to be done is to ask properly. There should not be a need for redoing the request to get what is needed.

While the legal process is imperfect, the judge stands as the person in the process who balances the scales and endeavors to ensure fairness in discovery and in the process as a whole. But the ability of the judge to do justice is only as good as the information that is brought before him or her. Again, one of the safeguards for the participants is uniformity in EHR disclosure. The more uniform and transparent the process is, the less likely the producing party may obfuscate or the requesting party may harass. All parties in the process are winners if this occurs. The patient has the information needed for the case, the opposing party can see and evaluate relevant EHR, and the health care provider’s burden is limited by more efficient production.

In the context of health care litigation discovery, to the extent that our intended national objective is indeed justice, we depend on the professional conduct of clinicians and jurists, whether in the hospital or in court.