Singularity Health Law Blog

DENTAL PATIENT SEEKS EXTRACTION FROM “SILENCER” CONTRACT.

There are a number of “silencer” contracts that have been marketed to dental and medical professionals as a means of keeping bad reviews from patients off of the internet.  Typically these agreements provide that in exchange for maintaining the confidentiality of the patient’s medical records the patient agrees not to make any critical reviews of the professional services received on the internet. These agreements also sometimes provide that the patient assigns his or her future intellectual property rights in reviews of the professional to the professional so that the professional can require web sites to “take down” adverse reviews.

 

EMR and Cloud’s Illusions

One of often voiced concerns about the storage of medical records on the internet or in “the cloud” as it were is the fear of marauding hackers stealing information in order to exploit patient data.  Michael Koploy, and ERP analyst at Software Advoice, recently wrote an interesting post entitled “HSS Data Tells the True Story of HIPAA violations in the cloud.” His article can be reached at http://www.softwareadvice.com/articles/medical/hipaa-violations-arent-in-the-cloud-1062011/ .  He starts with the so called “Wall of Shame” at the HSS website listing the details of 281HIPAA security violations through June 9, 2011. Only seven involved EMR violations and of those only one was accessed by hacker.  The most common violation was a lost or stolen computer hard drive, often taken from a car or van. Paper records were also frequently lost or stolen to negligent inattention or poor security.  Perhaps there will be a shift toward more cases involving cloud storage attacks in the future, but at present the security fears about cloud computing seem overblown. Perhaps it would be appropriate to borrow some lyrics from Joni Mitchell.

 

                    I’ve looked at clouds from both sides now

                    From up and down, and still somehow

                    It’s clouds illusions I recall

                    I really don’t know clouds at all.

 

 

BOOK REVIEW: SMART MEDICINE BY WILLIAM HANSON, M.D.

Smart Medicine: How the Changing Role of Doctors Will Revolutionize Health Care is a book soon to be published by Palgrave Macmillan is an entertaining mix of the history of medicine and promise of medical technology in the future. The history takes us through the early colonial feuds of Drs. John Morgan and William Shippen, Jr.in Philadelphia to an interesting chapter about how George Washington was killed by his doctors. Lincoln’s physicians do not show well either, but he probably would have died anyway.  There are of course other candidates for this presidential distinction such as Zachary Taylor, but enough said.

YELPING DENTIST BIT BY FEDERAL COMPUTER DECENCY LAW.

     Glen Reit, D.D.S. a dentist practicing in Manhattan received a number of favorable reviews from the online consumer reviewing service, “Yelp.”  All was well until an anonymous post by a “Michael S.” described his office as “small,” “old,” and “smelly.”   Judging from the name of the web site, there was an expected short, sharp, painful cry by either the reviewer or perhaps the reviewed. The post described Dr. Reit’s office equipment as “old” and “dirty.”  Dr. Reit leaped to the courts to obtain an injunction requiring the removal by Yelp of the offending review.  He claimed a substantial reduction in patient appointments. Yelp apparently removed the good reviews and kept the unfavorable review posted for a while.

THE END OF MEDICINE: How Silicon Valley (and Naked Mice) Will Reboot Your Doctor by Andy Kessler, Collins 2007.

    Andy Kessler is an irreverent, flip and highly readable writer who poses an interesting single question and than doggedly pursues an answer, with a lot of biting asides to entertain the reader. The question is, given the exponential decline in cost of technology in Silicon Valley and its exponential increase in power and effectiveness, why hasn’t medical technology turned over the same returns to deliver more effective health care at a cheaper cost. There are a number of reasons including the inherent slowness of the treatment and study process, the FDA, entrenched economic interests and the focus on treatment rather than prevention.

    

“VULGAR” MYSPACE BLOGING NURSING STUDENT ORDERED REINSTATED BY FEDERAL COURT.

Nina Yoder was a nursing student at the University of Louisville on an obstetrics rotation. In February 2, 2009, she posted a blog article on her MySpace page entitled “How I witnessed the Miracle of Life.”  The article, despite its uplifting title was largely snarkey, even vulgar as described by the defendants and even the judge in Nina Yoder v. University of Louisville, et al., Case No.3:09-CV-205-S (W.D. KY at Louisville),issued on August 3, 2009. The University dismissed Ms. Yoder for violating the School of Nursing Honor Pledge in a Memorandum Opinion  granting summary judgment reinstating Ms. Yoder. The blog article described a difficult birth in the context of the frustrations and emotional reaction of a tired and conflicted nursing student using graphic and unattractive descriptions of the participants and family awaiting the arrival of “the Creep.”

THE “AVIATION” MODEL IN HEALTHCARE AND AIR FRANCE FLIGHT 447

 In the 1980s the Commercial Aviation Safety Team (“CAST”) determined that eighty five percent of aviation accidents and fifty two percent  of all fatal aviation accidents were the result of cognitive error by pilots. CAST pushed for the use of systems, checklists and foolproof communication systems to reduce the human element in aviation. The result was a fifty percent decrease in aviation accidents. The success of the systems method in aviation led healthcare safety advocates to campaign for the application of the systems model to tamp down the impact of human frailty on adverse healthcare outcomes. The systems model is now a fact of life in high risk medical procedure, pharmaceutical administration and other healthcare delivery modalities.

 You can see it in the operating room when a nurse paints a sign “the other leg” on your healthy limb or where two nurses must sign off on a prescribed medication. The interest in the systems application to quality improvement continues unabated. See Kahn, et al. , “To Err Is Human: Building A Safer Healthcare System.” National Academy  Press. Washington, D.C. (2000); Stripe, et al. “Aviation Model Cognitive Risk Factors applied To Medical Malpractice Cases.” (JABFM.org.);Inglehart & Fleming, “New Patient Safety Uses Aviation System Model.” Health Affairs Blog, April 13, 2009.

 Since the 1980s and the onset of the digital age the aviation model morphed into a much more pervasive systems intervention through the surge in computer driven maintenance and operational applications, not unlike parallel developments in healthcare. The crash of Air France Flight 447 A330 Airbus over the Atlantic Ocean on May 31, 2009 thrust to the fore two separate, but related computer systems driving  both airplanes and healthcare, albeit to differing degrees. The Airbus utilized the Aircraft Communication Addressing and Reporting System (“ACARS”). The onboard computers sent ten automatic maintenance messages to Paris indicating failures in the plane’s electrical systems and decompression of air in the plane’s fuselage.

 The current proliferation of medical devices with direct internet monitoring and reporting capacity provide the potential and fact of real time reporting of human body systemic failure to medical record repositories. The healthcare mimicry of aircraft maintenance information technology is upon us and we will likely embrace the use of “wearable” computers with growing fervor in the future.

Despite the apparent differences between healthcare and aviation, the information exchange paradigm used to insure quality in the aviation industry can be implemented to reduce the impact of the aforementioned system errors in health care delivery system (sic).

Martin, Lance, “Reducing Medical Errors Using an Aircraft Maintenance Information Technology (IT) System Model,” Dartmouth undergraduate Journal of Science. Dujs.dartmouth.edu/2004s/healthcareit.pdf.

 Despite Mr. Martin’s optimism and enthusiasm there appears to two principal kinks in both the aviation and healthcare systems that need to be addressed. The first relates to the information systems. There is no question that computer monitoring systems can generate a great deal of useful data. The critical question is how to sort and present the data in a format and application that can realistically serve the needs of pilots and practitioners. There needs to be assurance that the data is correct and not affected by defective “pitot tubes” or other malfunctions and a means to sift and prioritize mountains of data so as to provide real time, meaningful input to those sitting at the controls.

 The second concern relates to the ultimate control of the mission. The Airbus A330 contains the latest in fly-by-wire technology that substantially limits the operational control of the aircraft by the pilots. This is an exclusively electric system, without manual or hydraulic features. There is a debate ensuing in the blogosphere as to the degree of control, if any can be wrested from the computers by Airbus pilots in the event of an emergency. (Think of HAL in 2010:A Space Odyssey. That would be next year.)  The issue is at what point should human beings be able to reassert control from computer systems, particularly where onboard computers are juggling conflicting information from various sensors?

 Did the computers aboard Flight 447 malfunction causing a crash or did a last ditch effort by the pilots to regain control interfere with the failsafe functioning the planes systems? Was it a combination of both or an unremediable "act of God?" We may never know the answer.

Remember, more often than not, an airliner goes down at the end of a long chain of unrelated, seemingly innocuous decisions, malfunctions, mistakes and external factors. Remove any single link (or even change their sequence) and you have an on time arrival. Miles O’Brien Uplinks, June 19, 2009. trueslant.com/milesobrien/2009/06/10the-paradox-of-simplicity/.

 In the future computer systems will have an ever increasing role in healthcare decision making and treatment as the incorporation of artificial intelligence applications into electronic medical records provides a whole new platform and paradigm for healthcare delivery. The healthcare industry will eventually face the conundrum of when and under what circumstances a physician will need to regain control over the treatment process. The crash landing of U.S. Airways Flight 1549 in the Hudson River earlier this year underscores some legitimate concerns to keep in mind. That crash also involved an Airbus with a similar air flight control system, which may have unnecessarily shut down the plane’s engines after the bird strike, causing the plane to lose all thrust. There may come a time when we need a doctor with the nerve, experience and professionalism of a Chesley B. “Sully” Sullenberger, III to seize the controls and manage a life threatening emergency.

Internet Medicine Part IV: “Health 2.0.”

“Health 2.0” or “Medicare 2.0” relates to a new paradigm in the relationship between patients and physicians, in particular the application of Web 2.0 interconnectivity tools or social media technology to the provision of health care.  One of the ironies of this movement is the emphasis on sharing rather than protecting or hiding health care information.  The www.patientslikeme.com  website sponsors  patients as partners with their physicians in assembling and sharing information related to specific diseases.  Patientslikeme assembles and aggregates patient information related to 5 chronic illness categories: Amyotrophic Lateral Sclerosis (ALS); Parkinson’s Disease, HIV/AIDS, Multiple Sclerosis and Mood Disorders.  Participants share treatment experiences, drug side effects, new treatment regimens and even organize and participate in their own clinical trials. 

INTERNET MEDICINE – PART I: The New Concierge Practice.

President Obama’s strong support for the proliferation of Electronic Medical Records (“EMR”) notwithstanding, there remains enormous residence to the digitalization of medical documentation by many physicians who have been in practice over ten years. That resistance is based on cost, complexity, utility, inertia and fear.  The array and diversity of systems available on the market are intimidating. There is always the concern about selecting a “Betamax” system over a “VCR” or a “HD” over “Blue Ray.” When is the right time to invest in expensive technology when change is unfolding with such rapidity?  Are the “bells and whistles” useful or a distraction?  Will it make a physician’s life easier or more difficult?   What is the paradigmatic practice model to adopt to maximize the efficient utilization of the potential of telemedicine?