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EMR and E-Discovery Is Coming: Are You Ready?

April 28, 2017
by David H. Levitt, Hinshaw & Culbertson LLP
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A paradigm shift is on the way. For more than a decade, electronic medical records (EMR) have become a ubiquitous feature of medical practice, from the individual medical practice to the largest healthcare systems. Over that same period, lawyers and their clients who find themselves in federal court have become familiar with electronic discovery; it was in 2006 that the Federal Rules of Civil Procedure were amended to include express reference to “electronically stored information.”

Over that decade, a large body of federal case law and experience has developed, but that development has not been paralleled in state court. State courts—where medical malpractice litigation almost always resides—have only recently begun enacting their own rules on e-discovery, and are also in the early stages of grappling with the challenge of e-discovery.

Unsurprisingly, therefore, the intersection of EMRs and e-discovery has not yet risen to the consciousness of most who deal with medico-legal litigation. Even today, when an attorney requests a medical chart from his or her client, and produces it to the patient’s attorney, it is most likely a PDF copy or paper printed version of the electronic chart. Attorneys for both sides have typically assumed that this is an accurate representation of the medical record and a common starting point.

But this is changing. Plaintiff attorneys are slowly realizing the potential advantages of e-discovery. They have begun asking for “audit trails” from the electronic record. And even here, they are only scratching the surface of potentially important information. Such information can impact much more than the resolution of individual claims, but may affect the way that medical providers are trained, the standard of care, healthcare system policies, and how providers interact with their patients.

It is not possible in an article of this length to go into great detail. But here are some topics that chief medical officers, chief information officers, risk managers, and others concerned with patient care and its intersection with the legal word ought to be considering.


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Audit trails fall within this category, but are only part of what might be available. For example, a common issue in medical malpractice cases is whether a physician did or did not review a certain notation in the chart before taking or failing to take action. Before EMRs, the issue was largely one of credibility. The doctor might testify as to what he or she reviewed, or a nurse might discuss his or her communications with the doctor. EMRs, however, may change this equation if the EMR system captures each occasion when someone logged into the system, what the person looked at while logged in, and how much time was spent looking at it. Or, the absence of such a record may indicate that the person did not look at a particular chart entry at the relevant time.

Moreover, it can become essential that review of this information be completed before the practitioner makes a statement or gives a deposition—which means that both the practitioner and his or her attorney must have access to that information first. Further, the availability and scope of metadata may vary from software vendor to software vendor. Wisdom suggests that the healthcare entity should understand what is potentially available in its own systems; indeed, most healthcare institutions use software from more multiple vendors for different aspects of their practice, so a review of availability for each system should be considered.

Living Documents

An anecdote: one of my colleagues described an incident where a nurse was divorced and changed her name to her pre-marriage name. Her sign-on ID remained the same. The EMR system, though, changed her name throughout the entire record—including the time when she practiced under her married name. In other words, unlike paper charts, the record itself changed.

Not every change will be so benign. A recurring issue in medical litigation is the authenticity of a given chart entry. In the paper chart days, this could involve retention of handwriting experts and looking for telltale signs of erasure and the like. But with EMRs, change is often a built-in feature. A new diagnosis or finding might or might not supplant an earlier one, depending on the features of the particular EMR program. Participants are best served if they investigate and recognize whether this feature applies to the system at issue, and act accordingly.

Dropdown Menus

Most EMR systems include dropdown menus and fields to fill in, but those generally do not make it into the print-out. Moreover, we have heard reports that the dropdown menus do not always fit the particular circumstance, but that there are limited alternative methods of recording the information. This creates the potential risk that the chart may not be entirely accurate. As attorneys become more aware of this issue, we should expect to see more requests for an electronic version of the chart, including the dropdown menus and available fields.

Communications Outside of the “Chart”

In an age when practitioners might discuss a patient with colleagues using instant messaging or texting with their cell phones, a question arises whether those discussions make it into the EMR. This impacts more than the medico-legal issues; it raises potential concerns about whether another practitioner involved with that patient has the means to be aware of such discussions, which possibly impact the care given to the patient. Institutions using EMRs should consider policies for permitting or prohibiting such practices, or for confirming that necessary information is appropriately managed and included in the EMR.

Availability of More Records and the Standard of Care

Not long ago, a visitor to a medical office would see file cabinets with patient charts behind the reception desk; an assistant would pull the chart—the office’s own chart on the patient—and give it to the practitioner before or during the visit. But with the advent of EMRs, and the increase in EMR-hosting arrangements under which larger healthcare systems host the records of individual practices, a larger set of medical records may be available to that practitioner. Some EMR systems may permit any practitioner to review all of his or her patient’s records stored on the system, even if they are another practitioner’s records. So, a cardiologist might have access to the chart of the patient’s dermatologist in ways that were not available before EMR hosting began. This raises additional medico-legal—and training—issues. For example, does the cardiologist have an affirmative duty to read and review all of the available records before prescribing medication or a course of treatment, even if the patient did not advise the cardiologist of these other medications or treatments? The industry would be wise to consider issues like these.


This article is more an exercise in consciousness-raising than in providing answers. The issues are only beginning to emerge, and there are no answers yet. EMRs present new challenges, and healthcare institutions should look ahead to meet them.

David H. Levitt is a partner at law firm Hinshaw & Culbertson LLP in the Chicago office. His primary practice is intellectual property, with wide experience in insurance, commercial litigation, products liability and trucking.

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Allscripts Sells its Netsmart Stake to GI Partners, TA Associates

December 10, 2018
by Rajiv Leventhal, Managing Editor
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Just a few months after Allscripts said it would be selling its majority stake in Netsmart, the health IT company announced today that private equity firm GI Partners, along with TA Associates, will be acquiring the stake held in Netsmart.

In 2016 Allscripts acquired Kansas City-based Netsmart for $950 million in a joint venture with middle-market private equity firm GI Partners, with Allscripts controlling 51 percent of the company. With that deal, Allscripts contributed its homecare business to Netsmart, in exchange for the largest ownership stake in the company which has now become the largest technology company exclusively dedicated to behavioral health, human services and post-acute care, officials have noted.

Now, this transaction represents an additional investment for GI Partners over its initial stake acquired in April 2016, and results in majority ownership of Netsmart by GI Partners.

According to reports, it is expected that this sale transaction will yield Allscripts net after-tax proceeds of approximately $525 million or approximately $3 per fully diluted share.

Founded 50 years ago, Netsmart is a provider of software and technology solutions designed especially for the health and human services and post-acute sectors, enabling mission-critical clinical and business processes including electronic health records (EHRs), population health, billing, analytics and health information exchange, its officials say.

According to the company’s executives, “Since GI Partners' investment in 2016, Netsmart has experienced considerable growth through product innovation and multiple strategic acquisitions. During this time, Netsmart launched myUnity, [a] multi-tenant SaaS platform serving the entire post-acute care continuum, and successfully completed strategic acquisitions in human services and post-acute care technology. Over the same period, Netsmart has added 150,000 users and over 5,000 organizations to its platform.”

On the 2018 Healthcare Informatics 100, a list of the top 100 health IT vendors in the U.S. by revenue, Allscripts ranked 10th with a self-reported health IT revenue of $1.8 billion. Netsmart, meanwhile, ranked 44th with a self-reported revenue of $319 million.

According to reports, Allscripts plans to use the net after-tax proceeds to repay long-term debt, invest in other growing areas of its business, and to opportunistically repurchase its outstanding common stock.

The transaction is expected to be completed this month.

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Study Links Stress from Using EHRs to Physician Burnout

December 7, 2018
by Heather Landi, Associate Editor
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More than a third of primary care physicians reported all three measures of EHR-related stress
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Physician burnout continues to be a significant issue in the healthcare and healthcare IT industries, and at the same time, electronic health records (EHRs) are consistently cited as a top burnout factor for physicians.

A commonly referenced study published in the Annals of Internal Medicine in 2016 found that for every hour physicians provide direct clinical face time to patients, nearly two additional hours are spent on EHR and desk work within the clinic day.

Findings from a new study published this week in the Journal of the American Medical Informatics Association indicates that stress from using EHRs is associated with burnout, particularly for primary care doctors, such as pediatricians, family medicine physicians and general internists.

Common causes of EHR-related stress include too little time for documentation, time spent at home managing records and EHR user interfaces that are not intuitive to the physicians who use them, according to the study, based on responses from 4,200 practicing physicians.

“You don't want your doctor to be burned out or frustrated by the technology that stands between you and them,” Rebekah Gardner, M.D., an associate professor of medicine at Brown University's Warren Alpert Medical School, and lead author of the study, said in a statement. “In this paper, we show that EHR stress is associated with burnout, even after controlling for a lot of different demographic and practice characteristics. Quantitatively, physicians who have identified these stressors are more likely to be burned out than physicians who haven't."

The Rhode Island Department of Health surveys practicing physicians in Rhode Island every two years about how they use health information technology, as part of a legislative mandate to publicly report health care quality data. In 2017, the research team included questions about health information technology-related stress and specifically EHR-related stress.

Of the almost 4,200 practicing physicians in the state, 43 percent responded, and the respondents were representative of the overall population. Almost all of the doctors used EHRs (91 percent) and of these, 70 percent reported at least one measure of EHR-related stress.

Measures included agreeing that EHRs add to the frustration of their day, spending moderate to excessive amounts of time on EHRs while they were at home and reporting insufficient time for documentation while at work.

Many prior studies have looked into the factors that contribute to burnout in health care, Gardner said. Besides health information technology, these factors include chaotic work environments, productivity pressures, lack of autonomy and a misalignment between the doctors' values and the values they perceive the leaders of their organizations hold.

Prior research has shown that patients of burned-out physicians experience more errors and unnecessary tests, said Gardner, who also is a senior medical scientist at Healthcentric Advisors.

In this latest study, researchers found that doctors with insufficient time for documentation while at work had 2.8 times the odds of burnout symptoms compared to doctors without that pressure. The other two measures had roughly twice the odds of burnout symptoms.

The researchers also found that EHR-related stress is dependent on the physician's specialty.

More than a third of primary care physicians reported all three measures of EHR-related stress -- including general internists (39.5 percent), family medicine physicians (37 percent) and pediatricians (33.6 percent). Many dermatologists (36.4 percent) also reported all three measures of EHR-related stress.

On the other hand, less than 10 percent of anesthesiologists, radiologists and hospital medicine specialists reported all three measures of EHR-related stress.

While family medicine physicians (35.7 percent) and dermatologists (34.6 percent) reported the highest levels of burnout, in keeping with their high levels of EHR-related stress, hospital medicine specialists came in third at 30.8 percent. Gardner suspects that other factors, such as a chaotic work environment, contribute to their rates of burnout.

"To me, it's a signal to health care organizations that if they're going to 'fix' burnout, one solution is not going to work for all physicians in their organization," Gardner said. "They need to look at the physicians by specialty and make sure that if they are looking for a technology-related solution, then that's really the problem in their group."

However, for those doctors who do have a lot of EHR-related stress, health care administrators could work to streamline the documentation expectations or adopt policies where work-related email and EHR access is discouraged during vacation, Gardner said.

Making the user interface for EHRs more intuitive could address some stress, Gardner noted; however, when the research team analyzed the results by the three most common EHR systems in the state, none of them were associated with increased burnout.

Earlier research found that using medical scribes was associated with lower rates of burnout, but this study did not confirm that association. In the paper, the study authors suggest that perhaps medical scribes address the burden of documentation, but not other time-consuming EHR tasks such as inbox management.


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HHS Studying Modernization of Indian Health Services’ IT Platform

November 29, 2018
by David Raths, Contributing Editor
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Options include updating the Resource and Patient Management System technology stack or acquiring commercial solutions

With so much focus on the modernization of health IT systems at the Veteran’s Administration and Department of Defense, there has been less attention paid to decisions that have to be made about IT systems in the Indian Health Service. But now the HHS Office of the Chief Technology Officer has funded a one-year project to study IHS’ options.

The study will explore options for modernizing IHS’ solutions, either by updating the Resource and Patient Management System (RPMS) technology stack, acquiring commercial off-the-shelf (COTS) solutions, or a combination of the two. One of the people involved in the analysis is Theresa Cullen, M.D., M.S., associate director of global health informatics at the Regenstrief Institute. Perhaps no one has more experience or a better perspective on RPMS than Dr. Cullen, who served as the CIO for Indian Health Service and as the Chief Medical Information Officer for the Veterans Health Administration

During a webinar put on by the Open Source Electronic Health Record Alliance (OSEHERA), Dr. Cullen described the scope of the project. “The goal is to look at the current state of RPMS EHR and other components with an eye to modernization. Can it be modernized to meet the near term and future needs of communities served by IHS? We are engaged with tribally operated and urban sites. Whatever decisions or recommendations are made will include their voice.”

The size and complexity of the IHS highlights the importance of the technology decision. It provides direct and purchased care to American Indian and Alaska Native people (2.2 million lives) from 573 federally recognized tribes in 37 states. Its budget was $5.5 billion for fiscal 2018 appropriations, plus third-party collections of $1.02 billion at IHS sites in fiscal 2017. The IHS also faces considerable cost constraints, Dr. Cullen noted, adding that by comparison that the VA’s population is four times greater but its budget is 15 times greater.

RPMS, created in 1984, is in use at all of IHS’ federally operated facilities, as well as most tribally operated and urban Indian health programs. It has more than 100 components, including clinical, practice management and administrative applications.


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About 20 to 30 percent of RPMS code originates in the VA’s VistA. Many VA applications (Laboratory, Pharmacy) have been extensively modified to meet IHS requirements. But Dr. Cullen mentioned that IHS has developed numerous applications independently of VA to address IHS-specific mission and business needs (child health, public/population health, revenue cycle).

Because the VA announced in 2017 it would sundown VistA and transition to Cerner, the assessment team is working under the assumption that the IHS has only about 10 years to figure out what it will do about the parts of RPMS that still derive from VistA. And RPMS, like VistA, resides in an architecture that is growing outdated.

The committee is setting up a community of practice to allow stakeholders to share technology needs, best practices and ways forward. One question is how to define modernization and how IHS can get there. The idea is to assess the potential for the existing capabilities developed for the needs of Indian country over the past few decades to be brought into a modern technology architecture. The technology assessment limited to RPMS, Dr. Cullen noted. “We are not looking at COTS [commercial off the shelf] products or open source. We are assessing the potential for existing capabilities to be brought into “a modern technology architecture.”

Part of the webinar involved asking attendees for their ideas for what a modernized technology stack for RPMS would look like, what development and transitional challenges could be expected, and any comparable efforts that could inform the work of the technical assessment team.




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