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Question: We’re computerizing much of our record keeping and clinical pathways, but we’re concerned about consistency between the computer and our existing policies, particularly with regard to a function that prompts the clinician to take certain actions. If the computer system’s prompts are not exactly the same as what we have in a written policy, does that create a liability risk?
Answer: There is some liability risk if your computer system prompts do not match your official hospital policy, says Diana J.P. McKenzie, JD, an attorney specializing in health care information issues with the law firm of Gordon & Glickson in Chicago. But she says the discrepancy would not necessarily be reason to avoid the computerized clinical pathway.
The issue arises when health care providers install sophisticated computer systems that do more than just document or provide factual information. Many of the systems prompt the clinician to take certain actions, such as checking for specific symptoms or monitoring the patient at certain intervals. Ideally, those prompts should exactly match what is already your official policy on those issues. If your hospital policy is to check the patient hourly for pain, the computer system should prompt the clinician to do that — not every few hours and not more often than hourly.
When there is a discrepancy, it sometimes is the result of just incorrectly programming the computer system, McKenzie says. And in other cases, the problem is that the computer system is incapable of providing the correct prompts, for technical reasons. Those possibilities have led some facilities to shy away from putting clinical pathways on computer systems. At Coney Island Hospital in Brooklyn, NY, director of health information Terry Deering says her facility is struggling with the issue because a hospital in the same health care system recently lost a malpractice case related to computer prompts.
The hospital was sued for malpractice, with the plaintiff alleging that the staff did not check vital signs as frequently as required by the computer prompts. But the hospital argued that staff had followed the hospital’s official policy on frequency of vital sign checks, and that the policy superseded the computer prompts. The court found that the more stringent schedule on the computer prompts created an obligation.
"We want to include a lot more clinical pathways in our system, but this leaves us in a dilemma," Deering says. "Risk management and legal affairs are very apprehensive, advising us not to put in many prompts at all."
McKenzie says that reaction may be unnecessary. She confirms that there have been a great many cases related to computerized prompts and similar systems, but "when people say they are scared to put in any prompts at all because they didn’t do it right the first time, my response is, Whoa, wrong answer.’"
Computer prompts are, in general, a very good idea, she says. The more reminders you have for good care, the better. As a rule, prompts will save you far more times than they will get you in trouble, she says.
"The problem is that treatment protocols aren’t necessarily consistent with how the software is created," she says. "Some will allow changes to make it consistent with your policy and some won’t. But it’s almost always possible to put a warning somewhere, usually on the sign-on screen, warning the user that the prompts may not be consistent with policy and that the written policy always stands."
A good plaintiff’s attorney will find the more stringent policy — whether it is the computer prompts or the official policy — and claim that it applies. It won’t bode well for you if the staff didn’t adhere to the stricter of the two options. Do all you can to make the computer system consistent with your hospital policy, but if that is simply impossible, McKenzie says you can rely on a prominent warning in the computer system that the prompts are only meant to be helpful and may not be a complete rendition of hospital policy. Clearly state in the system that in any discrepancy the official policy takes precedence over the computer prompts.
Staff education regarding the computer system should emphasize this point as well. In fact, McKenzie says, the real failing in many cases is that the staff was overdependent on a computer system and saw the prompts as the expected level of care. If they are not, the staff must understand that very clearly.
McKenzie urges risk managers to take a reasoned approach the problem. There have been "tons of computer cases," she says, but that is no reason to avoid a computer function that can improve care on the whole.
"Use the safeguards, and know that if a case is brought against you, you will be held to the more stringent policy," she says. "Just having the prompts on the screen should not be the final word on anything. Make it clear that you are not writing policy with those computer prompts. You still have to follow policy."