Several weeks ago, I presented a three-part series on telehealth, exploring what it is, potential issues, the current legal landscape and suggestions for facilities, insurers and practitioners related to the increasing utilization of telehealth services. One of the increasing ways providers are utilizing telehealth capabilities is in connection with rehabilitation after a patient suffers a stroke. In a new, randomized clinical trial of 124 adults following stroke, researchers found that telerehabilitation showed comparable efficacy to traditional in-clinic rehabilitation for improving motor status and for improving patient knowledge about stroke. [1] In fact, many patients receive inadequate rehabilitation therapy after stroke, often as a result of limited access to therapists and difficulty with transportation, and of a limited scope of knowledge about their stroke and prognosis. Telehealth, including telerehabilitation, has great potential to address these issues.


One of the main draws of utilizing telemedicine is that it increases appropriate and timely access to medical services, especially in rural areas, and promotes improved health outcomes and less costly treatments.[2] In Idaho specifically, thirty-five of Idaho’s forty-four counties are rural or frontier, often facing limited access to health-care services and challenges in recruiting and retaining local physicians. Hospital systems recognize the need to provide medical services in these more rural communities: For example, Intermountain Healthcare operates a twenty four-hour telehealth center that provides forty telehealth services to seven western states, and St. Luke’s Healthcare System recently opened a twenty four-hour Virtual Care Center, which provides telehealth services throughout Idaho and Eastern Oregon. Through its Virtual Care Center, St. Luke’s successfully piloted a unique Remote Patient Management program[3] for home monitoring of patients living with chronic conditions.[4]


In this recent study, participants underwent a 6-week course of intensive home-based telerehabilitation programs targeting arm movements after stroke. The goal of the study was to determine whether treatment targeting arm movement delivered via a home-based telerehabilitation system has comparable efficacy with dose-matched, intensity-matched therapy delivered in a traditional in-clinic setting, and to examine whether this system has comparable efficacy for providing stroke education. All participants received 36 sessions (70 minutes each) of arm motor therapy plus stroke education, with therapy intensity, duration, and frequency matched across the home-based telerehabilitation and in-clinic groups. Participants in the telerehabilitation group actually participated in a greater number of the sessions than the clinic based group, and showed as substantial of gains in their arm motor function as those participants in the in-clinic rehabilitation group.


Ultimately, the researchers concluded that telehealth, particularly telerehabilitation, is an effective way to provide rehabilitation therapy and improve patient outcomes after stroke and is also useful in connection with improving patient access to rehabilitation therapy. Telerehabilitation programs can produce benefits that are comparable with those derived from dose-matched, traditional, in-clinic rehabilitation therapy, which is encouraging for ongoing telehealth expansion efforts.


References:

[1] Study | Steven C. Cramer, MD1; Lucy Dodakian, MA, OTR/L1; Vu Le, MS1; et al., Efficacy of Home-Based Telerehabilitation vs In-Clinic Therapy for Adults After Stroke: A Randomized Clinical Trial (June 24, 2019), JAMA Neurol. 2019;76(9):1079-1087. doi:10.1001/jamaneurol.2019.1604.

Stroke remains one of the leading causes of death in the US, and in Idaho alone in 2013, 598 total deaths were attributed to stroke. See Stats of the State of Idaho, published by the CDC, available at https://www.cdc.gov/nchs/pressroom/states/ID_2015.pdf.


[2] Marc Harrison, Telehealth is Improving Health Care in Rural Areas, Harvard Business Review, May 15, 2019, https://hbr.org/2019/05/telehealth-is-improving-health-care-in-rural-areas.


[3] Mandy Roth, Got Rural? Go Virtual. St. Luke's Did, Health Leaders (Sept. 11, 2018), https://www.healthleadersmedia.com/innovation/got-rural-go-virtual-st-lukes-did.


[4] Eric Wicklund, New Telemedicine Center to Extend Connected Health Across Idaho, mHealthIntelligence (Aug. 28, 2018), https://mhealthintelligence.com/news/new-telemedicine-center-to-extend-connected-health-across-idaho.


  • CMottHesse

A new study by The Doctors Company analyzed electronic health record (EHR)-related medical malpractice claims that closed between 2010 and 2018, and discovered that the pace of these claims tripled, increasing to an average of 22.5 cases per year in 2017 and 2018. By comparison, an analogous previous study analyzing closed claims during the period from 2007 through 2016 revealed that claims in which EHRs were a factor grew from just 2 during 2007-2009 to 7 during 2010, and to 161 during the period from 2011-2016.


EHRs

As defined by the Centers for Medicare & Medicaid, the electronic health record (EHR) is an electronic version of a patients medical history, maintained by the provider over time, which may include all of the key administrative clinical data relevant to a patient's care under a particular provider, including demographics, progress notes, problems, medications, vital signs, past medical history, immunizations, laboratory data and radiology reports; the EHR automates access to information and has the potential to streamline the clinician's workflow.  In 2017, more than 90% of hospitals and 80% of physicians’ offices utilized EHRs, and today, the utilization is nearly universal. It is undeniable that EHRs tout numerous and significant benefits, including supporting other care-related activities, improving quality management, quantifying outcomes, and strengthening the relationship between patients and clinicians by enabling providers to make better decisions and provide better care. Nevertheless, the number of medical malpractice claims for errors caused, all or in part, by EHRs have risen significantly during the past 10 years.


2017 Study: Key Findings

While EHRs are not often the primary cause of claims, they do present potential risks from various underlying issues that can engender or give rise to potential malpractice claims. This recent study revealed that EHR-related claims are grouped into system technology and design issues, or user-related issues.


User-related issues decreased 6% over during the period of 2010-2018, and most commonly involved entry of incorrect information, pre-populating or copying and pasting information, and "alert fatigue." The term "alert fatigue" refers to an increasing desensitization by providers to computerized order entry system alert popups, which results in providers ignoring or failing to respond to such warnings; the phenomenon occurs because of the sheer number of alerts, and it is compounded by the fact that the vast majority of alerts generated are clinically inconsequential and can be ignored.


The most frequently seen system technology and design issues, resulting in an 8% increase during 2010-2018, included problems with technology and design issues, lack of integration of hospital EHR systems, and failure or lack of alerts and alarms; notably, failure of drug or clinical decision support issues were present in 50% of the EHR-related claims from July 2014 through December 2016.


With respect to the most common injuries among EHR-related claims, adverse reaction to a medication and death were most prevalent, while diagnosis-related allegations represented nearly one-third of the total. Interestingly, internal medicine, hospital medicine and cardiology showed marked decreases among individual specialties involved in claims; family medicine and nursing also showed some decreases. Conversely, orthopedics, emergency medicine and ob-gyn showed increases in EHR-related claims. Also notable, is the location of the precipitating event for EHR-related claims: the study revealed that events are occurring more frequently in patient rooms and less frequently in hospital clinics/doctors’ offices, ambulatory/day surgery centers, labor and delivery, and emergency rooms; however, hospital clinics and doctors’ offices do remain the most common location for these events.


Risk Mitigation Strategies

  • Avoid copying and pasting, except when describing the patient’s past medical history. Make sure documentation is relevant, objective, and current.

  • Review all available data and information prior to treating a patient—injury may result from failure to access or make use of available patient information.

  • Take care when e-prescribing, which is useful but offers many opportunities for error, to ensure adherence to alert popups and document any actions taken.

  • While alert fatigue is a real problem, refrain from disabling or overriding alerts in the EHR, as physicians can be liable for failure to follow an alert that could have prevented an adverse event.

  • Contact your organization’s information technology (IT) department or your vendor if you notice that the auto population feature causes erroneous data to be recorded, or with proposals for modifications to alert popups. If the auto-populated information is incorrect, note it and document the correct information. Also note that even if an error can be traced to a faulty EHR design, vendor contracts often have "hold harmless" clauses that attempt to shift liability onto physicians.

  • Review your entry after you make a choice from a drop-down menu. Templates with drop-down menus facilitate data entry, but an entry error may be perpetuated elsewhere in the EHR. Erroneous information, once entered into the EHR, is easily perpetuated and recreated; best practice is to review an entry after selecting a drop-down menu choice. Especially susceptible to drop-down menu or template errors are History & Physical and Procedure notes, which often auto-populate from older notes and/or templates.

  • Relocate the computer so the physician’s back is not to the patient and so the patient can view the screen. Remind the patient that you are listening carefully, even though you may be typing during the appointment, and summarize or read the note to demonstrate you have listened.

  • Be aware of the constant creation of metadata: all interactions with the EHR are tracked and likely discoverable in litigation.

  • Be aware of tracking functions within the EHR to facilitate consultation and test results are completed, returned to the ordering provider, and communicated to the patient.

  • Do not share physician passwords with other staff, and remain vigilant about cybersecurity issues. Staff should not be allowed to use a physician's password to review, update or sign off on lab, imaging or other results, as doing so can result in a physician not seeing pertinent results and/or reports.

While EHR-related claims are quickly increasing in number, they do remain a small percentage of overall claims. Nevertheless, they should remain at the forefront of risk mitigation analysis and procedure because the potential for harm can be substantial. Hospitals, facilities, and practices should have processes in place to monitor EHR issues and prioritize the need for EHR improvements and redesign based on risk.

  • CMottHesse

Where many medical malpractice cases often turn into a "battle of the experts," it is rarely enough that a witness meet just the basic statutory and evidentiary rule requirements, as the effectiveness of any medical expert is also directly impacted by his or her credibility, likability, persuasiveness, and other subjective qualities. An expert must be qualified, but also credible to a judge and the jury.


Idaho Code Section 6-1012 requires that a plaintiff must, "as an essential part of his or her case in chief, affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence, that such defendant . . . negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence of such physician and surgeon, hospital or other such health care provider and as such standard then and there existed with respect to the class of health care provider that such defendant then and there belonged to and in which capacity he, she or it was functioning . . ." Further, Idaho Rule of Evidence 702 stipulates that a witness "qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."


On the path to trial, it is often the case where the plaintiff's expert testifies the standard of care was not met, the defendant's expert testifies it was, and each expert explains his or her respective qualifications, background and experience to add credence to the proffered opinions. In these scenarios, the outcome of the case becomes highly impacted by the jury's perception of the experts. Therefore, it is important to select a qualified medical expert who not only carries sufficient academic credentials, experience, and training, but also presents effectively, credibly and persuasively. It is equally important for defense attorneys to assess an expert witnesses's subjective qualities well in advance of trial.


Factors Influencing Perception of an Expert Witness


Subject Matter and Case Knowledge

As a threshold matter, as the proponent of the expert witness, attorneys should find an expert with relevant knowledge and experience to speak with authority to the case's issues. The attorney must be prepared to articulate the expert's credentials, education, board-certifications, specialty(ies), publications, presentations, and other experience to establish the expert's qualifications and credibility. When first receiving the expert's CV, it is helpful to read it once for content, and a second time while considering how a judge and a jury would view this expert's credibility. The other component is also ensuring that the expert knows the case. It is not uncommon for experts to be retained on multiple cases at a time, so ensuring that your expert studies the case facts, records, and materials is paramount. Even if an expert is a renowned authority in their field, if they have not studied the medical records, deposition transcript(s), and other case documents, it is far to easy to fall into giving testimony adverse to the defense. Further, demonstrating a lack of knowledge of the facts of the case undercuts the expert's credibility in the eyes of the jury and judge. If an expert appears completely unfamiliar with the case, it is possible that a judge may strike that expert's testimony from the record, or preclude further testimony from that expert, which significantly and detrimentally impacts the defense's position.


Potential Bias

Also important is to evaluate sources of bias that an expert may harbor, or that may be perceived by a judge or jury. Sources of such perceived bias could be prior retention of that expert, an expert's categorical rule to only provide expert testimony for the defense, or pre-existing personal relationships with the parties/attorneys. Percipient jurors may view any of these as evidence that a witness if biased in favor of the defendant(s) and accordingly discount the testimony. Similarly, when there is an appearance of bias, loss of credibility typically follows. Further, if there is reason to support a determination that an expert was inappropriately swayed by the evidence, injury, parties, and/or attorneys, that can suffice as reason to disqualify the witness's testimony.


Demeanor and Etiquette

While it would seem axiomatic that an expert witness would know how to behave professionally and courteously, and dress appropriately, it would be a misstep to automatically assume these things. Attorneys should anticipate engaging in preparation sessions with experts, which include advising the expert that when they present to provide testimony, he/she should be clean, well-groomed and conservatively/professionally dressed; scrubs should be changed out of, shirts should be collared and pressed, skirts should be at appropriate lengths. With respect to the expert's habits and communication style, attorneys would be remiss not to remind experts to appear respectful, calm, confident, and collected; that the courtroom (or deposition room) is not the place for laughter, slang terms, uncontrolled laughter, emotional outbursts, or chewing gum. During depositions that are videotaped, it is often helpful to advise the expert to not take a glass of water into the camera frame, due to natural tendencies to reach for it at sporadic times of nervousness. Of course, attorneys should present this advice in conjunction with explaining that the judge and jury will be evaluating the expert on body language, dress, and etiquette. Interestingly, the impact of an expert's likability on the credibility of the expert varies among personalities: extroverted jurors tend to view witnesses they like as more credible, while introverted jurors' perception of credibility was not impacted by whether or not they like the expert.


Prior Testimony and/or Claims Against the Expert

Particularly relevant in medical malpractice cases where the proffered expert is also a practicing physician, is any prior deposition and/or trial testimony rendered by the expert, and any prior claims made against the physician. Prior deposition and/or trial testimony should be obtained and reviewed with an eye toward identifying similar areas of testimony given in the past. For example, if a defense expert was previously retained by a plaintiff and provided testimony that surgical treatment is always necessary in X situation, but plans to opine for this defense that surgical treatment was not necessary nor within the applicable standard of care in a similar situation, a case of diminished credibility may arise with using this expert. Further, it is important to inquire about past claims or lawsuits made against the expert: for example, revealing that an expert has had 7 prior lawsuits during his career that resulted in 5 plaintiff's verdicts and $4.2 million dollars of damages, collectively, has a high likelihood of undercutting the expert's credibility and effectiveness in the eyes of the jury.


Facts, and Just the Facts

While each state's rules of evidence may slightly vary, most are similar to or echo Federal Rule of Evidence 704(a), which instructs that expert witnesses may offer testimony on factual issues that a jury will decide as the trier of facts. What this means is that it is important that an expert's testimony does not cross into the purview of the judge's considerations and instructions on the law. An expert witness cannot render legal opinions, advise the jury on the law, or state what law applies to the case, as those are issues and determinations reserved for the judge.


By proactively evaluating a prospective expert's background, education, experience, past litigation history, and engaging in candid preparation for giving testimony, attorneys can work to ensure that their expert witnesses are not only qualified but also likely to be perceived by the judge and jury as likable, persuasive, and credible.

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