ALL MD Attorney Tad Devlan (Full Interview) on Healthcare Matters
In this episode, Healthcare Matters interviews ALL MD attorney Tad Devlin on how the Affordable Care Act could have a deflating effect on medical malpractice verdicts, risk management techniques for protecting HIPAA confidentiality in regard to electronic medical records, how he would consult EMR makers for improving medical malpractice claim defensibility and best practices for entering data into an EMR.
Devlin is a partner at KAUFMAN, DOLOWICH, VOLUCK. He practices law in California, focusing his practice in the areas of commercial and insurance litigation, ERISA/life, health and disability benefit disputes, profit sharing plan and employee stock plan disputes, real estate, financial services disputes, professional liability (lawyers, doctors, accountants, real estate, insurance agents, architects and engineers), disciplinary defense and white collar defense.
Devlin is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.
Interview recorded June 17, 2015
Mike Matray: Hi, I’m Mike Matray and I’m the host of Healthcare Matters, where the legal and medical fields come together to discuss healthcare matters. Today’s guest is Tad Devlin. He’s partner at Kaufman Dolowich Voluck, where he focuses his practice in areas in professional liability, commercial and insurance litigation, health and disability benefit disputes, profit sharing plan and employee stock plan disputes, real estate and financial services disputes.
Welcome to Healthcare Matters. Tad, how has the move from paper medical records to electronic medical records affected best practices for entering data into a patient’s chart and what guidance would you give physicians so that they are using best practices when entering data into their electronic medical records?
Tad Devlin: Yeah, it’s an interesting issue because we’re on the cusp of, well, maybe well into electronic records and portability, accessibility and even on our phones with mobile devices. So, gone are the days or almost extinct are the days of actual manual files. It has a lot of pros and cons and it has a lot of room for error, although the efficiencies in the technological advances, I think, in my opinion, outweigh the old way of doing things.
Best practices in the old days, if you well involved ensuring timely reporting, accurate record keeping for the medical files and, hopefully, contemporaneous reporting but there was typically a disconnect. If you’ve ever reviewed some doctor notes, you know it can be difficult, if not almost impossible, to read and understand what they’re writing. Also, you’ve got a challenge because if the doctor is no longer available to testify, to explain the records, it’s going to be difficult for anybody to do so.
Previously, we had a nice chain of custody with medical records, assuming folks were adhering to best practices. So, anybody who entered a log entry note or wrote up a medical file note, they put either their initials or their identifying information in there. So, reviewing insurance companies and/or professionals or legal practitioners could understand who was saying what and contact Dr. Jones or Dr. Smith and find out what they meant when they wrote some entry.
Now, we’ve got the electronic data entry and we have electronic databases, both internally and externally. It’s a bit of a challenge with the old guard, if you will, or the pre-text and the pre-phone at your fingertips generation and the new modern method of entering data and speaking. The same rules really apply but with more attention to electronic privacy and security and internal and external protection measures to avoid a hack, or a leak, or inaccuracy in reporting. So, I think that a blend between best practices from the old day, if you will, and the new day and proper training and kind of internal securities and safeguards, and doctors have continuing education requirements in technological advances and data entry and certainly on there, including, of course, under HIPPA privacy to ensure accuracy, privacy and security in the reporting. So, hopefully we’re having more, and I think we will, have a more efficient method of recordation and sharing and use. That being said, there are always issues out there with new technology and there are some here as well.
Mike: A recent RAMCORP American Medical Society study called for a complete design overhaul of electronic medical records to improve their usability. If you had the opportunity to advise any MR vendor, how would you recommend that they redesign the products? What changes would most benefit the defensibility of a malpractice claim?
Tad: I wish that they talked with the lawyers on the front end rather than on the back end and we’ve done that in the past, where we give nationwide training out to ensure accuracy, privacy, timely reporting and security. I think some of the important flashpoints for practitioners and treaters to keep in my mind are log on log off periods, ensuring that you have a proper electronic chain of custody that folks are taking the time to accurately write down into the data entry system what they intend to say.
A lot of times, I have found in my personal life and in professional experience, it’s much easier to use short hand and abbreviations with texting and typing with a keyboard, if you will, or even dictation than it were to be in the old days, if you only actually get out a piece of paper and a pen and you may take multiple drafts on a letter or correspondence or a medical entry. There’s something more connected between your brain and your hand, I have found in dealing with claims, than there is behind a brain and a keyboard. So, I think it’s important to review what you’ve written, to make sure that you have a double submission entry point. It’s like another confirmation. Say you draft up your note, you click submit, you get an opportunity to review it, you’ve got a box that says, “Did you review and do you agree to the accuracy and certainty?” And then you confirm it. So, there are additional safeguards before a log entry gets made.
The reason I say that is because, often times, it’s the one vague or ambiguous entry that didn’t necessarily capture what the doctor meant that the opposing side will seize upon to try to create liability or uncertainty where none exists. It’s much easier for that to be contained by an accurate record as opposed to a speaking doctor who is in a deposition, or in a regulatory setting, or even trial saying, “That’s not exactly what I meant, what I meant was…” There’s an adage in the law that witnesses talk, documents walk. So, like the picture can be a thousand words, those medical records and those medical file entry points are oftentimes held up before a fact finder who is called to interpret them, and an explanation from a doctor may not move the needle, no pun intended.
Mike: HIPAA data breaches are emerging as one of the largest systemic risks a hospital or a large group faces in the modern healthcare delivery system. What risk management advice would you give physician clients for maintaining HIPAA Confidentiality within their EMR system?
Tad: That’s an excellent point. I’ll just tell you that I had a case come across my desk where it was a hybrid. It was an alleged internal breach at a hospital for one of their employees who came in as a patient. Under that scenario, in that fact pattern, the patient/employee had checked a confidentiality box on a form, and when that form got entered into the system, there was a disconnect internally and the circumstances of the employee/patient’s visit to the hospital were disclosed and other very sensitive private information about his medical history, where all of a sudden it became water cooler fodder, which was relayed to him, of course, via a text message from another colleague. It’s an electronic game of post office.
So, to avoid that and avoid allegations of a systemic breach or of an anthem class-size breach, I think it’s incumbent to have external, internal and practical safeguards. In reverse order, a practical safeguard would be an isolated, dedicated electronic database entry area. Not a cube, but an actual office with a door. On top of that, you’ve got a chain of custody for those who enter into the system, both manually, through the old fashioned, “I’ve checked the kitchen area, and I was the last person in here,” and on the computer digital footprint, if you will, so it’s an assigned login. And then you could also have privacy screens on the face of the monitor, which I’ve seen on airplanes. They’re pretty useful to prevent an onlooker from happening upon some information that they shouldn’t see. Folks are generally curious. Even if a screen is left open, they will look, just by nature, and see what it is.
That there, the minute the toothpaste is out of the tube, so to speak, it’s hard to put it back, so then other internal safeguards can be with respect to only dedicated personnel are entitled to use it. They have the most sufficient encryption method they can have, they have secure access points, and externally, to keep out potential exposure to outside leaks. That requires ensuring that your cyber program is up to snuff and that your IT department, the dedicated resources are there, even though that may not be a desired spot of the budget, doing that work on the front end to prevent some opportunistic folks externally to access data and then try to sell that on a secondary market is money well spent, in my opinion.
Mike: One of the legal arguments being advanced in regard to medical malpractice and the Affordable Care Act centers on the collateral source rule, and whether a defendant position could, instead of paying for a lifetime of medical care for an injured patient, he or she could pay for healthcare insurance for the plaintiff through the healthcare exchange, because pre-existing conditions are no longer a cause for denial of coverage. Can you comment on that?
Tad: This seems like it could be an end-around or a way to couple up with the collateral source rule, depending upon which side of the fence you are on. I know out here in California, the microcap is a big deal, which limits the damages to $250,000 cap, which some folks say has really left a lot of claims unpursued, if you will. I think with the Affordable Care Act and future life care plans are really what could be targeted by this, because a lot of times, in TBI, total brain injury cases, or serious bodily injury cases, it’s really the life care plan and the projections outward that are what drive the case and what drives the plaintiff’s attorney to really go after the insurance company’s money and then excess insurance.
So, here, and there’s a lot of debate about the value of a life care plan, but if you’ve got the Affordable Care Act, which could make moot or neutralize some of those costs to double up at the collateral source rule, that the plaintiff is not going to get a double recovery, then I think you could see a big ratcheting back of experts who’d be willing to opine for the plaintiffs lawyers that this life care plan is going to $10, $20, $30 million.
Mike: Tad, I know that you practice in the San Francisco area, but in 2012, the Missouri Supreme Court overturned that state’s cap on non-economic damages, saying that it violated the third constitutional right to a jury trial. In response, the governor of Missouri just signed a law that moves all common law claims of medical malpractice to a statutory course of action for damages, which they say cites that state constitution’s right to a jury trial. What is a statutory course of action, and how does this side step the state’s common law right to a jury trial?
Tad: What it is, is it’s called a private right of action that’s specifically set forth in the statute. So, in addition to potentially giving statutory guidance on what could be a breach of the duty or what potential damages are available or what recourse you have in terms of penalties or fines, here you’ve got the statute giving the potential plaintiff or the claimant their statutory based course of action. What a defense lawyer could say is that, “Look, you don’t have a separate and separate common law cause of action. You’re preempted by the statutorily based cause of action. That’s your roadmap. You have to stick within that,” and if that is judged to be or deemed to be a cause of action that can only proceed before a judge as opposed to a jury, then I could see some friction there between the constitutional right to a jury trial in the United States Constitution and then under the Missouri constitution and then the new statutory based cause of action, which usually has more limitations on the amounts of recovery. A common law, it’s driven by the courts decisions, and is interpreted as a free for all, quite frankly, or can be.
Mike: Thank you, Tad, for joining us on Healthcare Matters, where the medical and legal communities come together to discuss healthcare matters. I hope to talk to you again soon.