HIE Standard of Care — What You Don’t Join Can’t Hurt You.. or Could it?
It should come as no surprise that many providers are still leery about joining a HIE due to concerns over becoming potentially exposed to new liabilities. Questions such as “Who owns the data” “How can I be certain of data accuracy and completeness” and “Is the HIE secure?” are very common to hear during discussions with providers who are evaluating joining a HIE. Providers are also concerned that participation in a HIE will create a new obligation to access and review seemingly endless electronic reams of information about a patient, and many want to know if in the event that they “miss something” buried deep in the electronic HIE abyss, can they be sued and held liable for malpractice?
Whether or not a provider will be held liable for “misses” will always depend on the facts and circumstances surrounding a particular case. However, the “standard of care” in medicine evolves over time, especially when dealing with new technologies. Therefore, what may not yet be the standard of care today, may very well be just that in the very near future. Sooner or later, this will likely hold true with use of electronic medical record (EMR) and HIE technology as well.
To get a different perspective on the question, I decided to ask an old law school friend who now happens to be a successful medical malpractice attorney (I try not to hold that against him!) what he thought about HIEs and malpractice. Initially, we both agreed that if the relevant information is hidden deep inside the HIE and is not reasonably accessible to the busy practicing provider, is not presented in a way that is of value or conducive to making clinical judgments, or it is just plain too expensive to join the HIE, then it will be unlikely that the physician’s “failure” to “find” or “access” such information would be found by a jury to be negligent or falling below the “standard of care.” However, my friend then did a 180º on me when he said the following…
But, if joining the HIE is not cost prohibitive, and the information was available to the physician in a meaningful, easily-accessible and useful way that, had it been accessed through the HIE, could have prevented harm to the patient, but the physician did not join the HIE simply because he/she did not want the new obligation and burden of having to review such information, then I would definitely sue the physician for not joining the HIE and not accessing the information because it could have prevented harm to my client…
Now, I have to admit I did not see that one coming and immediately thought to myself “so, is this a case of ‘damned if you do’ and ‘damned if you don’t’”? I don’t think so. However, the reasons why providers decide not to join a HIE should be very carefully considered and weighed against the potential benefits joining a HIE may have for their patients, namely potentially improving safety and quality of care. That said, before HIE technology can become a standard of care, at a minimum it must be easy to use, offer useful information, be secure, and not cost prohibitive to the busy practicing provider. Once that happens, however, what will happen if providers don’t join and patients suffer as a result? …. well, I guess my old law school friend may be waiting!
