Avoiding a patient's lawsuit could hinge on device interoperability


Hospital CIOs and physicians I've talked with are clearly thinking about how the new 24/7 availability of this information on mobile devices (rather than via a desktop PC) increases a physician's liability.

One important question that may be getting missed in the melee, though, is how interoperability may be a critical part of the liability equation. That is, if a physician can't exchange information with colleagues or experts on a patient's case--if his smartphone can't accept certain test results, or his tablet can't access data from another physician's system--does that make him more liable for mistakes made in that patient's care?

Joseph McMenamin, a physician-turned-health-lawyer with McGuireWoods in Richmond, Va., posed just this question in an intriguing blog on iMedicalApps late last week. He noted that in cases where disparate systems can't communicate with one another, technology "that ought to improve care may impede it, and raise liability concerns."

It's an important question because in traditional liability litigation, plaintiffs often hang their cases on a "failure to communicate" between providers, such as a provider not being immediately notified of an abnormal fetal heart monitor reading, McMenamin says.

He gives the example of a physician receiving a request for patient information from another physician who doesn't use the same system or device. "The potential for error is obvious. The lack of interoperability of the record could contribute to risk in any clinical setting..." he says.

I talked with McMenamin this week to dig a little deeper into the ins and outs of this argument, and pinpointed two clear tasks hospitals and physicians need to work on:

1. Keep a finger on the pulse of emerging technology use in healthcare. The key aspect of most liability claims is whether the physician deviated from the standard of care, and whether that deviation contributed to the patient's injury or death. Right now, it's clear that mobile devices are nowhere near ubiquitous enough to be considered part of the standard of care for most conditions or treatments.

But that could change quickly, with physician adoption of smartphones, tablets and other mobile technologies soaring. So, keeping tabs on how doctors in your specialty, or your area or state, are using mobile technology certainly is worth trying.

In terms of interoperability, the question gets a little murkier. It may not always be easy to determine--before actually trying to transmit data or information to another practitioner--if your devices or systems are interoperable. And if the average doctor or hospital isn't regularly testing those connections, it may not be considered "standard of care" to do so.

But in the end, if you're trying to obtain information for a patient's care, and that information cannot be obtained without the technology, it certainly does make sense to have asked that question.

2. Put interoperability high on your priority list as you develop your hospital's mobile strategy. With increasingly fragmented care, physicians are increasingly more reliant on other practitioners to provide pieces of the clinical puzzle, McMenamin noted in his post.

So, it certainly could be considered a prudent measure, from a risk-management standpoint, to understand your own devices' communications capabilities, as well as their limitations.

"I don't view the existing situation as fraught with peril," McMenamin says. "But it's one of the umpteen things that's worth thinking about if you're working to set up" a mobile technology solution in your organization. - Sara

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