Law Times

LAw times • August 22, 2011 FOCUS PAGE 13 Hospitals warned to tread carefully on e-health Potential for negative patient outcomes from errors looms large BY ROBERT TODD Law Times H ospitals and other health-care providers must be more mind- ful than ever in their use of information. But not only is there the threat of breaching privacy legislation if they mis- handle data, but the potential for negative patient outcomes also looms large. Michael Whitt, a partner at Bennett Jones LLP's Calgary of- fi ce and co-leader of the fi rm's information technology prac- tice, says there's a discussion across the globe over the catego- rization of large, multi-user elec- tronic health records systems. Some say they should in fact be considered medical devices, he notes. Th ese considerations are of particular importance in Ontario, where the Ministry of Health has recommitted itself to creating an electronic records system for the province's 13 million residents by 2015. "Th ere is a regime to regu- late the safety of medical de- vices," says Whitt. "I think the better view is that they're not really the same kind of animal. A medical device like an MRI machine is a diff erent kind of thing than a record-keeping system for electronic medical records." Whitt points out that hospitals, with their large numbers of users and multi- ple levels of access, will likely have signifi cant amounts of customization built into their electronic record sys- tems. Th ey may even run on diff erent networks or hard- ware. However, Whitt agrees that there's merit in the idea of building in quality assur- ance during the design and implementation of systems, much like the protocols put in place throughout the con- struction of straightforward medical devices. It's clear how errors such as indications of improper blood types in a bank or the lack of an allergy fl ag on a patient re- cord could lead to potentially catastrophic patient outcomes and, further down the line, litigation. Whitt stresses, how- ever, that such glitches are un- likely to come about thanks to the sophistication of those who construct patient health record systems. "Th ose kinds of systems are made to be very robust and they're administered by pro- fessional IT teams," he says. "Th ey're installed by people who, typically, know what they're doing. And then they're used by people who also have Electronic health systems 'are made to be very robust and they're admin- istered by professional IT teams,' says Michael Whitt. a great amount of clinical ex- perience." To be sure, clinicians don't rely solely on the electronic re- cord presented to them. Th ey also focus on what they're see- ing in their direct interaction with the patient, including both physical symptoms and responses to questioning. Th at approach is an essential check against the potentially cata- strophic eff ects of a faulty elec- tronic record. "Th ere's always the ability to misread a chart or to cut off the wrong leg, as they say," Whitt notes. "But those kinds of situations have to be managed in reality as well as in the electronic world." While large health-care institutions, such as hospi- tals, typically purchase elec- tronic health systems from sophisticated companies, Whitt says it remains es- sential for lawyers to advise clients to create protocols for managing error reports from them. It's also impor- tant to create an agreement in which the institution can report errors to vendors and escalate those that create risk to patient outcomes as being "mission critical," he adds. "Th at would be the highest order of error and would have the fastest response time and the most resources thrown at it to see it fi xed," he says. Users should also ensure they have the ability to shut a system down. Th at's critical should any type of scaling er- ror manifest, says Whitt. As with any system that relies on the contribution of multiple types of users, com- munication is also essential to ensure the viability of an elec- tronic health system. "You want to continue a di- alogue with the system vendor and the system confi gurator — that would be IT people — to the clinical people so that when the clinical people notice that there are errors introduced not by the system, perhaps, but by the interfaces to the system . . . those things are more likely to be a continuous improvement mechanism," says Whitt. If hospitals weren't busy enough rolling out electronic health systems, they're also preparing for a potential del- uge of access-to-information requests on Jan. 1, 2012. Th at's when their administrative and policy-related data will become subject to provisions within the Freedom of Information and Protection of Privacy Act. Bonnie Freedman, Toronto regional leader of Borden Lad- ner Gervais LLP's privacy and access to information group, says hospitals are working hard in preparation for the change. She remains astonished at in- stitutions' ability to manage the overwhelming amount of data they collect, maintain, and protect. "It's always the type of situ- ation where they never know what's coming in the door next," says Freedman. "Hos- pitals are perpetually having to manage not necessarily new legislative requirements but just whatever comes up." The best fit for success. Membership in the Canadian Bar Association (CBA) provides more than 37,500 lawyers access to the piece of the puzzle which enables them to excel. The CBA enhances your professional influence by providing the platform for you to participate in legislative and policy solutions in your field. The CBA leadership role helps you keep your edge by accel- erating your professional development through innovative tools and access to accredited professional development programs and industry leaders. The CBA protects your interests and upholds the core values of the legal profession every day in ways that individual lawyers and law firms cannot accomplish alone. We do this by leading the debate on fundamen- tal issues such as solicitor-client privilege, the Rule of Law, access to justice, and an independent judiciary. Join today by visiting www.cba.org. INFLUENCE. LEADERSHIP. PROTECTION. Untitled-1 1 www.lawtimesnews.com 8/16/11 1:02:39 PM

• Cover
• Provocative Comments
• Cautionary Note
• Focus On Health/Life Sciences Law