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Craig Brodsky (6/12/15) Full Interview

By Craig Brodsky to EMR/EHR


ALL MD attorney Craig Brodsky sat down with the Editor of the Medical Liability Monitor, Mike Matray, and discussed a number of healthcare topics including electronic medical records, the PPACA, HIPAA, medical liability and much much more.

Mr. Brodsky is a partner with the firm Goodell, Devries. He has represented attorneys, physicians, psychologists, healthcare organizations, nursing homes, group homes, developers, adoption agencies, and real estate brokers. He has developed a concentration in defending healthcare providers in birth trauma, and cerebral palsy ligation. He frequently presents to healthcare providers and attorneys on current developments in the law in medical issues.

Interview was recorded June 12, 2015


Mike: Hi, my name’s Mike Matray, and I’m your host of Healthcare Matters, where the medical and legal community comes together to discuss healthcare matters. Today, my guest is Craig Brodsky. Mr. Brodsky is a partner with the firm Goodell, Devries. He has represented attorneys, physicians, psychologists, healthcare organizations, nursing homes, group homes, developers, adoption agencies, and real estate brokers. He has developed a concentration in defending healthcare providers in birth trauma, and cerebral palsy ligation. He frequently presents to healthcare providers and attorneys on current developments in the law in medical issues. Welcome to Healthcare Matters, Craig.

Craig: Good morning.

Mike: We’d like to start today discussing electronic health records. And with the Affordable Care Act moving the healthcare delivery system to this digital format, how has it affected best practices for entering data into a patient’s chart? And what guidance would you give to physicians, so that they’re using best practices when entering data into their electronic medical record?

Craig: I think one of the difficult things about electronic medical records, is that there’s some user time that people need to learn how to use the systems. And so, the best advice we can give to physicians, and other people who are entering data into it, is take the time to learn the system. Learn the drop-down menus, learn the fields, learn what’s populated automatically versus what is populated through user entry. And that’ll help you get the right information into the records, at the right time. Make everything clear, and as things move forward and information moves forward in the record, that allows the correct information to be put in. Electronic medical records have been very helpful, in certain areas. It’s great in terms of medication administration, things that we have in terms of side-effects of medication, medication interactions. But it’s difficult, from a human standpoint, in terms of learning the technology.

Mike: A recent RAND Corp. and American Medical Society study called for complete design overhaul of electronic medical records to improve usability. If you had the opportunity to advise an EMR company on the redesign of it’s products, what changes would most benefit the defensibly of a malpractice claim?

Craig: I can think of a couple basic areas that would be really helpful for us. One, is simply the printability of the actual records. By the time a system comes to us and we are involved in a malpractice case, we’re often using paper copies or PDFs of printed out versions of charts. And if we don’t have a system that works well, in terms of putting pen to paper and in terms of what gets presented to the court and to other parties, it makes it very difficult for the interpretation of that data and what does it mean. So, from a malpractice standpoint and defending cases, if there’s a way to design a system that makes the printing of the actual electronic record for use in litigation better, that’s one item that we’d like to see change, as defense counsel.

Another thing that we think in defense counsel, in terms of making things easier, is we’d like to see the menus be better. A lot of these are drop-down menus, and fields that are populated automatically. And physicians sometimes don’t have the perfect matches. So, if there’s not a good match, we need for people to take the time to enter the information in, in the little manual fields. Like, for example, down at the bottom of the screens, so that the right information matches the patient. Lastly, the electronic medical records are wonderful for making access of prior information and bringing it forward into charts. What that means, though, from a malpractice standpoint, if something is wrong, or incorrect, or no longer applicable, it really needs to be corrected, as early as possible, so that it doesn’t continue to repopulate those fields.

Mike: An EMR’s audit log and access log can be the Achilles’ heel when defending a medical malpractice claim. Can you explain the audit access log to our viewers? How plaintiff’s counsel can exploit it, and how a healthcare professional can avoid these specific pitfalls when using an electronic medical record.

Craig: So, the audit trail logs, in basic, is a similar to metadata. And it just tells you when somebody entered a particular item into the record, or it tells you when a particular field was accessed for information. And so, what that allows plaintiff’s counsel to do is be able to tell whether records have been changed, whether somebody entered a note late, whether something’s been erased from the record, or something along those lines. It just is a signature as to who’s doing what, when. So, when items happen in a hospital, or at a doctor’s office, this allows the plaintiff’s counsel to see whether there is accuracy in the records. And if there’s inaccuracies in the records, that takes away from the ability to defend a case.

On the flip side, if the records show a solid audit trail, and that information was timely and accurate, and not altered in any way, then that allows a good contemporaneous record as to when it happens. One thing that would be important would be, on this issue, I think, would be to make sure that the accurate timing . . . if a physician is entering a time into the record, or believes that the timing of something is important in a note, take the moment to actually put in the time that something was done, so that that information is in there contemporaneously.

Mike: HIPAA data breaches are one of the emerging large systemic risks for a hospital or a large group practice in the modern healthcare delivery system. What risk management advice would you give physician clients for maintaining HIPAA confidentiality within their EMR system?

Craig: So, I think one of the big issues that we’ve got, in terms of EMR records and HIPAA data breaches, in addition to the obvious, is the system. And is the vendor somebody that’s up to date, in terms of what security is out there, is remote access. People take their laptops home, people use their iPads for records. And I think my biggest concern is that a good, strong policy in place, good strong security measures on tablets and laptops and iPhones, is something that could help a lot. That’s the biggest area of concern that I see. Computers tossed out, or not being locked up securely, are where these types of data breaches could be there.

Mike: Right now, the most discussed topic in healthcare is the Affordable Care Act. Do you see any areas where the Affordable Care Act affects medical liability litigation, and if so, what is that?

Craig: Sure, well the interesting thing that’s been an out outgrowth of the Affordable Care Act is this mandate, the individual mandate to buy insurance policies. And when we deal with high-dollar or catastrophic injuries in malpractice cases, we’re seeing the Affordable Care Act impacting how damage claims may be put together. This is a very emerging area of the law, and it’s really not clear how the various jurisdictions are going to address it.

But the individual mandate might have a very significant impact on catastrophic injury claims, and specifically, how and what plaintiffs might recover for future damages. Often times in catastrophic injury cases, the future medical bill claims can be exorbitant. We’re talking sometimes in excess of 2, 3, 5, $10 million, for people who had severe brain injuries. The Affordable Care Act, though, has eliminated certain problems, though. For example, there’s no pre-existing injury claims, and everybody has to have insurance. So, in theory, a person could go out and buy a health insurance policy that will cover all their care for the rest of their lives. That’s a lot cheaper than paying for the actual care.

The question is whether the states will allow the type of a of damage purchasing health insurance for a claimant, and covering out-of-pocket expenses, as opposed to the actual dollar amount. This goes against what litigators know as the Collateral Source Rule, which means that money that comes from another source does not reduce the damages owed. It’s an old policy, back from English common law. So, what we’re gonna litigate in the near future, is whether buying an insurance policy and paying the out-of-pocket costs for somebody can substitute for the high-dollar costs of care. And that’s gonna be an interesting issue that’s gonna play out throughout all of the states.

Mike: How long do you think until this is settled case law, and there’s precedent that will determine, one way or another, whether the Affordable Care Act’s insurance policies would mitigate the actual liability?

Craig: Well, we’re starting to see it now at the trial levels in a number of places, and we know that there’s a California Supreme Court case that essentially allows for a reduction based on certain costs that are out there. So, I would venture to say that within three to five years, we’ll start to see a fair amount of case law on the subject in most of the jurisdictions.

Mike: Excellent. Well, thank you, Craig, for spending your afternoon with us here on Healthcare Matters. And good luck to you, and I hope to speak with you in the future.

Craig: Thanks very much for having me.