HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, March 11, 2011

Medical-Legal Literature 2010-2011: Top Ten Hits

From Marshall B. Kapp (FSU), Medical-Legal Literature 2010-2011: Top Ten Hits [*OK, so I lied.], presented at the ACLM Annual Meeting, February 26, 2011

  • Kathryn Zeiler, Medical Malpractice Liability Crisis or Patient Compensation Crisis?, 59 DePaul L. Rev. 675 (Winter 2010)
  • Robert Winning, Direct Regulation of Medical Malpractice Premiums:  The Least Dangerous Reform, 2010 Colum. Bus. L. Rev. 281-317(2010)
  • Patricia A. Sullivan & Jon M. Anderson, The Health Care Debate:  If Lack of Tort Reform is Part of the Problem, Federalized Protection for Peer Review Needs to be Part of the Solution, 15 ROGER WILLIAMS U. L. REV. 41-92 (2010)
  • Jennifer Arlen, Contracting Over Liability:  Medical Malpractice and the Cost of Choice, 158 U. Pa. L. Rev. 957- 1023 (2010)
  • Katherine L. Record, Wielding the Wand Without Facing the Music:  Allowing Utilization Review Physicians to Trump Doctors’ Orders, But Protection Them From the Legal Risk Ordinarily Attached to the Medical Degree, 59 DUKE L.J. 955- 1000 (2010)
  • Stephan Landsman, The Risk of Risk Management, 78 FORDHAM L. REV. 2315-2327 (APRIL 2010)
  • Nicolas P. Terry, Physicians and Patients Who “Friend” or “Tweet”:  Constructing a Legal Framework for Social Networking in a Highly Regulated Domain, 43 IND. L. REV. 285-341 (2010)
  • Jenna Caldarella, Privacy and Security of Personal Health Records Maintained by Online Health Services, 20 Alb. L.J. Sci. & Tech. 203-230 (2010)
  • Colin P. McCarthy, Paging Dr. Google:  Personal Health Records and Patient Privacy, 51 WM. & MARY L. REV. 2243-2268 (2010)
  • Mark A. Hall, Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records, 95 IOWA L. REV. 631-663 (2010)
  • Bria N. DeSalvo, Katherine M. Keith & Annette Soberats, Health Care Fraud, 47 Am. Crim. L. Rev. 681-740 (2010)
  • Ashley Bassel, Order at the End of Life:  Establishing a Clear and Fair Mechanism for the Resolution of Futility Disputes, 63 Vand. L. Rev. 491-540 (2010)

March 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

Gaia Bernstein, Direct-to-Consumer Genetic Testing: Gatekeeping the Production of Genetic Information, SSRN/UMKC L.Rev.

Frank Pasquale, Restoring Transparency to Automated Authority, SSRN/Journal on Telecommunications and High Technology Law

Benjamin M. Flowers, Preemption, Market Segmentation, and Generic Drugs, SSRN

Anna D. Sinaiko and Meredith B. Rosenthal, Increased Price Transparency in Health Care — Challenges and Potential Effects, NEJM


March 11, 2011 | Permalink | Comments (0) | TrackBack (0)

The Massachusetts Laboratory

As the GOP Presidential contenders begin to jostle for cable news coverage, the presence of a certain ex-governor of Massachusetts has given the White House something to smile about. As reported by Politico, former senior adviser David Axelrod has been praising "Romneycare," available here; "People in the state like it, and he ought to be proud of it, and he ought to embrace it. And one day, I think he will…That work inspired our own health care plan.”

The first part of that phrase seems to be accurate. According to a Massachusetts Health Connector survey, available here, 84 percent of its members are satisfied with their coverage (and only 4 percent dissatisfied). These are impressive numbers and appropriately drown out some other glitches such as shortages of primary care. As a result Connector members still use ERs for primary care at about the same rate as the rest of the population. Also showing some stubborn resistance to change is medical debt. An American Journal of Medicine survey of Massachusetts filers, available here, suggests that Massachusetts' healthcare reform has not yet decreased the number of medical bankruptcies.



March 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 10, 2011

Why Narratives Do (and Should) Matter in Bioethics

There is a fascinating recent decision from the Indian Supreme Court on the Shanbaug case, regarding a woman who has been in a persistent vegetative state (PVS) for over 37 years. A petitioner who had written a book on Shanbaug (Pinky Viranai) argued for a withdrawal of life support. Shanbaug had no family to intervene, but hospital staff resisted, and the Court ultimately sided with them. While unflinchingly examining the dehumanizing aspects of PVS, the Court offers a remarkable affirmation of the good will of the staff who have taken care of Shanbaug:

[I]t is evident that the KEM Hospital staff right from the Dean, including the present Dean Dr. Sanjay Oak and down to the staff nurses and para-medical staff have been looking after Aruna for 38 years day and night. What they have done is simply marvelous. They feed Aruna, wash her, bathe her, cut her nails, and generally take care of her, and they have been doing this not on a few occasions but day and night, year after year. The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In 38 years Aruna has not developed one bed sore. It is thus obvious that the KEM hospital staff has developed an emotional bonding and attachment to Aruna Shanbaug, and in a sense they are her real family today.

After a scholarly survey of many countries and U.S. states’ laws on withdrawal of life support, the Court concludes:

A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. . . .


In our opinion, if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors.

While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw’s play ‘The Doctors Dilemma’). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook’s novel ‘Coma’). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale’s case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient’s family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law.

I am no expert in this area of law, but I thought the Court’s opinion very interesting and worth recommending as a survey of global views on the topic and a careful consideration of a particular case. I also think the mentions of Shaw and Cook raise an interesting question for devotees of law & literature and law & humanities scholarship.

The Place of Stories in Legal Analysis

Having published on bioethics in a law & humanities journal, I do think poetry & literature can tell us “what always happens,” as opposed to history’s account of “what happened.” For over a decade, the journal Health Affairs has featured a column (and now podcast) called “Narrative Matters.” There is a book collecting such essays, featuring some classics in the genre. The best writers tell us about the enduring aspects of what it means to be human. Moreover, you never understand the health care system the same way once you’ve had a serious illness and experienced “patienthood” first hand.

But I am aware of Richard Epstein’s approach in the collection “On 1984: Orwell and our Future,” where he is said to “maintain[] that the normative messages in Orwell’s fiction were based too heavily on Orwell’s idiosyncratic, and thus unprepresentative, experiences” (5). Echoing Holmes and latter day empirical legal scholars, Epstein insists that empathy for the poor or vulnerable is far less valuable than a hard-headed examination of how they got to be that way. In the Shanbaug case above, present-day concerns about “rampant commercialization and corruption” among Indian robber-barons may have made the Court exceedingly receptive to parallel narratives of medical malfeasance.

However, I think Epstein and his ilk are far too confident in the ability of any “social scientific” efforts (to understand, predict, and control the future) to rise above motivating narratives. Nobel Prize winning economist George Akerlof and Robert Shiller described the fundamental role of stories in economic reasoning in their modern classic, Animal Spirits. As they explain:

The idea that economic crises, like the current financial and housing crisis, are mainly caused by changing thought patterns goes against standard economic thinking. But the current crisis bears witness to the role of such changes in thinking. It was caused precisely by our changing confidence, temptations, envy, resentment, and illusions—and especially by changing stories about the nature of the economy. . . .

[O]ur sense of reality, of who we are and what we are doing, is intertwined with the story of our lives and of the lives of others. The aggregate of such stories is a national or international story, which itself plays an important role in the economy. . . .The human mind is built to think in terms of narratives, of sequences of events with an internal logic and dynamic that appear as a unified whole. . . .Great leaders are first and foremost creators of stories.

The Indian Supreme Court’s careful recounting of the details of Shanbaug’s care, and elliptical reference to “horror stories” about physicians who fall short, is a bid for that type of “great leadership.” More concretely, the Court wants to point to what David Brin has called “self-preventing prophecy,” a genre that includes George Orwell’s, Aldous Huxley’s, and Gary Shteyngart’s novelistic efforts to “rock the public’s conscience” and “help[] us to divert disaster.” Shaw’s work is probably good enough to merit such treatment, but does Cook’s potboiler really add much to the argument?

X-Posted: Health Reform Watch.

March 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 9, 2011

Dayna B. Royal: "The Skinny on the Federal Menu-Labeling Law & Why it Should Survive a First Amendment Challenge"

 Dayna B. Royal, Assistant Professor of Law at Cumberland School of Law, posted "The Skinny on the Federal Menu-Labeling Law & Why it Should Survive a First Amendment Challenge" on SSRN:

Dayna-harmelin In America’s battle of the bulge, the bulge is winning. Contributing to this obesity epidemic is Americans’ increasingly widespread practice of eating at restaurants where deceptively fattening food is served to patrons who grossly underestimate the calories in their meals.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a First Amendment challenge. Though the federal law affects commercial speech, it is a reasonable means for accomplishing a legitimate government interest - the reduction of consumer deception and the promotion of public health. The skinny on the federal menu-labeling law is that it is an appropriate means to inform patrons’ menu choices at restaurants and help shrink America’s waistline.




March 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Sigrid Fry-Revere, Thomas Andrew Reher & Matthew Ray: "Death: A New Legal Perspective"

Sigrid Fry-Revere, Thomas Andrew Reher and Matthew Ray of the Center for Ethical Solutions (CES) posted "Death: A New Legal Perspective" on SSRN:
Throughout the ages the definition of death has been fairly static and at the same time very nonspecific; a person was considered alive until vital functions ceased, thereafter that person was considered dead. The last century has brought about the advent of many new medical technologies and processes, which have brought with them a need for specific criteria about the definition of death. This article lays bare what is at stake in the modern dispute over the definition of death and argues that it is time to reconsider this legal definition as it has developed over the last fifty years. Certainty should take precedence over expediency, and individuals should be empowered to take into consideration their personal definition of death in making end of life health care plans. As a matter of public policy, no patient should be declared dead until after all integrated circulatory and brain functions have ceased; but individuals should be allowed to decide for themselves, or through their surrogates, when to end care or donate organs based on their own concept of death and thus, if they so desire, before the official criteria for determining death are met.

March 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Adam J. Kolber: "Alternative Burdens on Freedom of Conscience"

Adam J. Kolber, Professor of Law at Brooklyn Law School posted "Alternative Burdens on Freedom of Conscience" on SSRN:

Adam_kolber We sometimes exempt people from generally applicable laws when compliance would violate their rights of conscience. In “The Significance of Conscience,” Kent Greenawalt discusses a variety of issues about the proper scope and subject matter of claims of conscience. He argues that we should generally give nonreligious claims comparable treatment to religious claims but argues further that there are special reasons to accommodate religious claims that ought to factor into our deliberations.

In this brief comment, I discuss Greenawalt’s analysis and propose a method to avoid differentiating between religious and nonreligious claims, at least in many contexts. I describe “alternative burdens” that can be imposed on those who make claims of conscience that increase the likelihood that their claims are made sincerely and, if granted, are subsequently perceived as fair. The proposed approach makes it generally irrelevant whether a claim is founded on religious or nonreligious reasoning. (This comment was written for the University of San Diego School of Law Symposium, “Freedom of Conscience: Stranger in a Secular Land.”)




March 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 8, 2011

The Battle over Embryos

Bard Both in vitro fertilization and Human Embryonic stem cell (hESC) research involve the destruction of human embryos about five or six days after conception. Yet the public seems to view the two activities very differently. Stem cell research still engenders legal controversy including the recent, and as yet unresolved, case of Sherley v. Sebelius in which research scientists challenge President Obama’s decision to lift President Bush’s Executive Order prohibiting federal funding for stem cell research beyond a specifically identified limited number of existing cell lines. The plaintiffs are scientists currently seeking research funding for work with adult stem cells. They claim that President Obama’s order violates existing federal law, the Dickey/Wicker amendment, which prohibits federal funds being used to destroy human embryos for research purposes. They assert standing based on the harm they will suffer from competing with those seeking funds for embryonic stem cell research.

While the Sherley case seeks to prevent federal funding of embryonic stem cell research, several states, including Iowa, are considering taking the next step of making such research actually illegal.  Others have taken the opposite approach and passed statutes allocating funds to support this research. The National Council of State Legislatures has been tracking this issue. One possible result is that unlike England where all hESC research is funded and regulated by the government, it may become entirely dependent on states and private donors.

Yet very little, if any, of the protest over embryonic stem cell research addresses the inevitable result its ban will have on limiting the availability of IVF.  Rather than spark outrage, IVF is often described as a “miracle” and babies born with its assistance “miracle babies.”  Indeed, a clinic in India, a country which is making an industry out of providing IVF treatments as well as surrogate mothers at costs far lower than the United States  is actually called “IVF Miracles

Although there were some laws introduced, following the public outcry over the Octo-Mom’s ability to have eight embryos implanted, they were aimed more at the costs to the state of someone without financial means acquiring so many mouths to feed. Indeed her act in having all of viable embryos implanted saved them from the usual fate of disposal, donation for research, or a state of permanent frozen hibernation. 

Iowa, Colorado, and several other  states, are considering a so-called “personhood” amendment which would extend the status of “legal person” from conception forward.  Louisiana already has such a law and it is being interpreted as not prohibiting IVF but rather prohibiting the destruction of any embryo created in the process. 

While couched as pro-life and anti-stem cell research measures, in fact these bills would effectively make illegal any form of in vitro fertilization in which a embryo is not allowed to gestate to maturity

Here’s an op-ed piece I wrote for the Des Moines Register trying to sort things out. Is anyone else interacting with the public on this topic?

Gaining Moral Perspective on the Movement to Ban Fetal Stem Cell Research

By Jennifer S. Bard, Visiting Professor Drake Law School

The world of scientific research is fraught with ethical dilemmas which should be the concern of everyone in the community.  In that context, the current debate in Iowa and many other states over whether embryonic stem cell research should be made illegal is not only appropriate but important.  But it needs to take place within the context of facts.

Unlike every other cell in the human body which has a specific purpose and of which there is often a limited supply, stem cells have the potential to generate any organ or tissue.  Until recently, little was known about stem cells because they were rarely seen.   This is because the capacity for unlimited generation ends when we are born.  After that cells become specialized.  While adults have some modified forms of stem cells which oversee the production of new cells in blood or bone marrow,   once a spinal cord is severed or brain tissue atrophies from dementia, it does not grow back.

The hope of those undertaking embryonic stem cell research is that someday it will be possible to transplant stem cells into the already developed human body so that it can repair itself.  The effect would be to accomplish things that are now impossible such as undo the paralysis of those suffering from spinal cord injuries or to cure diseases like cancer, diabetes or Parkinson’s.  Here’s the catch.  There is no way, nor should there be any need, to sugar coat the reality that obtaining embryonic stem cells involves the deliberate stopping ,after five to eight days, the process in which a fertilized human egg develops into a fully formed infant.  The embryos used for stem cell research are donated by parents who have extra embryos after having undergone in-vitro fertilization (IVF) and are then destroyed in the process of developing embryonic stem cells which can be studied and implanted into injured parts of the body. 

Why do parents donate these embryos?  Because as technology now stands, it is impossible to undergo IVF without facing the decision of what to do with the embryos which are not implanted yet remain viable.  Most such embryos are destroyed by thawing.  Many remain in frozen storage forever. A few may be donated for use by other couples.  And some are donated for research.  All of these options are legal in Iowa and the choice is completely the parents’.

For those who believe life begins at conception and that any effort to stop the process of fetal development is wrong, both IVF which results in left over embryos and embryonic stem cell research are absolutely wrong and should be illegal.  But not everyone sees the case as clearly as these absolutists nor need they.  

For non-absolutists, each form of embryo destruction requires a different balancing of benefit versus cost and each of us is entitled to our own opinion. Few of us have “all or nothing” ethical belief systems.  Even those who accept the necessity for embryo destruction to provide infertile couples with their own biological children can have a special moral concern about research involving a human embryo. It is reasonable to want to balance the need for research against the act of destroying an embryo.

Most Americans so far see embryonic stem cells’ capacity to substantially reduce sickness and disability worth the use of embryos which would have otherwise been discarded.   Only one state, Louisiana, has made stem cell research completely illegal by making it illegal to destroy any frozen embryo.  This kind of law imposes substantial restraints on our fundamental liberties to create families and control reproduction.  While some claim that embryonic stem cell research is unnecessary because of advances in adult stem cell research that, unfortunately, is not true.  But the concerns of those who oppose the use of embryos for research are valid and should be respected by acknowledging the sensitivity of the undertaking and by continuing to fund research with adult stem cells even though it may end up being more difficult and expensive.

It would be interesting to know the extent to which those expressing opposition to fetal stem cell research are also opposed to the usually inevitable destruction of embryos in IVF?  

It’s interesting to watch how this pageant of cognitive dissonance plays out. 

    - Jennifer S. Bard



March 8, 2011 | Permalink | Comments (1) | TrackBack (0)

Introducing Jennifer S. Bard as the First Guest In Our New Guest Blogger Series

It gives me great pleasure to introduce Jennifer S. Bard as our first guest in our Guest Blogger Series. Jennifer will be posting once a week for the month of March.

Bard Jennifer S. Bard is the Alvin R. Allison Professor of Law at the Texas Tech University School of Law where she directs the health law program, the health law certificate and the JD/MD program. She is also an adjunct assistant professor in the department of Psychiatry at Texas Tech University School of Medicine.  She is a graduate of Yale Law School, started her career working for a Federal District Court Judge and since then has worked at Shearman & Sterling in New York as a mergers & acquisitions litigator, been an Assistant Attorney General in the Health Care Fraud and Whistleblower Unit of the Connecticut Attorney General’s Office and a professor at the University of Texas Medical Branch in Galveston.


March 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Climate Change, Health, and Frustration

Three recently released scientific reports funded by the National Oceanographic and Atmospheric Administration (NOAA) demonstrate how climate change could increase human-health risks originating from ocean, coastal, and Great Lakes ecosystems. They are summarized on the National Ocean Service websiteA University of Washington study concludes that higher ocean temperatures will lead to harmful algal blooms in Puget Sound that will cause shellfishery closings and threaten the state’s $108 million annual shellfish industry, possibly within a decade. The other study was conducted by the University of Georgia. It indicates that the increased desertification in Western Africa will lead to the coastal areas experiencing a growth and persistence of Vibrios, a group of ocean bacteria that can cause gastroenteritis and infectious diseases in people. The other study concludes that the increase in spring rains expected over the next 50 years will lead to 20 percent increase in the volume of sewage overflows, with harmful effects on the Great lakes. This study was completed by the University of Wisconsin – Milwaukee. These represent yet more evidence that U.S. climate policy must be geared toward reducing the causes of climate change as a health imperative.

The most frustrating part of working on climate change law in this country is the necessity to counter the influence of people who deny that climate change is happening. These publoic debates have transformed the political agenda from discussing what to do to about climate change to whether there is a need to do anything at all. Political discourse in Washington needs to catch up with the rest of the world. For those in need of quick references to use to silence the misinformed, one of the best sites is NASA’s Global Climate Change page. It uses its own satellite data showing compelling evidence of sea level rise, global temperature rise, shrinking ice sheets, warming oceans, glacial retreat, extreme events and ocean acidification. Another source is the work of the Intergovernmental Panel on Climate Change (IPCC), whose excellent reports can be accessed here.

Fox News network is fanning the flames of this misinformation, according to a December UK Guardian article. It reports about a leaked email from Fox News's Washington bureau chief ordering journalists to include skepticism of climate change in all their reporting on the issue. The email, obtained by Media Matters, reads in part: "We should refrain from asserting that the planet has warmed (or cooled) in any given period without IMMEDIATELY pointing out that such theories are based upon data that critics have called into question… It is not our place as journalists to assert such notions as facts, especially as this debate intensifies." There is probably no point in informing the Bureau Chief that these “critics” have been debunked, and it is Fox News itself that is “intensifying” that debate. - MM

March 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, March 7, 2011

To the Young Go the Kidneys?

In a new concepts paper, the United Network for Organ Sharing has requested comments on potential modifications in the system for allocating kidneys among those waiting for a transplant.  The modifications would give greater priority to young, healthy patients with kidney failure and lower priority to older patients.  The concepts paper has already elicited criticism, and UNOS has responded with a clarification on its webpage. [DO]


March 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Can Don Berwick Survive?

Being an "iconoclastic scholar of health policy" as Dr. Donald Berwick was described by the Times upon his recess appointment to CMS, here, will tend to get you noticed notwithstanding White House attempts to fly him under the radar as described here

According to Senator Orrin Hatch who spearheaded today's letter from 42 senators calling for the White House to abandon Berwick's tenure, available here,

Don Berwick is a contentious choice to head an agency with a budget larger than the Defense Department’s and implement the vast majority of the $2.6 trillion health law. The White House’s handling of this nomination – failing to respond to repeated requests for information and circumventing the Senate through a recess appointment – has made Dr. Berwick’s confirmation next to impossible...

Unfortunately, according to this Politico report, the Democrats on the Hill seem to have given up on him and view his nomination as dead. Consider Kaiser Health News' resource page on Berwick, available here. Isn't this a shameful waste of a great positive figure for healthcare reform?



March 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 6, 2011

EHRs: Another Progress Report

Is there room for doom and gloom with regard to the government's ARRA-subsidized electronic health records initiative? We know Dr. Blumenthal is leaving ONC and returning to Harvard and there is already speculation, here, as to the type of replacement the Secretary should favor. In a recent New York Times article, "Carrots, Sticks and Digital Health Records," available here, the always well-informed Steve Lohr alludes to the risks of the new Republican Congress pulling back some of the HITECH funding. Lohr also perceptively contrasts Blumenthal's consensus-based model with the President’s Council of Advisors on Science and Technology (PCAST) recent recommendation, available here, that there should be more government-led “top-down design choices.”

According to a recent speech by Dr. Blumenthal reported by Government HealthIT, here, 18,000 providers have registered with CMS for the meaningful use-dependent subsidy program for EHRs. That sounds impressive. But what percentage of potentially eligible providers does that represent? Indeed, a recent PriceWaterhouseCoopers survey "Putting patients into 'meaningful use,'" available here, suggests that fewer HITECH subsidy participants will achieve "meaningful use" (down to 82% compared to 90% this time last year). Not surprisingly hospitals are pushing back against heightened criteria for Stages 2 and 3 or Meaningful Use; College of Healthcare Information Management Executives comment to ONC, available here.

New data also suggests that some of the core tenets of the EHR movement may be ripe for reconsideration. The contentious history of EHRs has been about funding, not about their impact on improved healthcare. Yet, new research by Max Romano and Randall Stafford, "Electronic Health Records and Clinical Decision Support Systems," Arch Intern Med. Jan. 24, 2011, here (subscription), casts doubt, noting "no association between EHR use and care quality for 19 indicators and a positive relationship for only 1 indicator." Less surprising, perhaps, is that patients still trust their doctors much more than EHRs, according to a new survey reported in Computerworld and available here

So, is there any good news to report about EHRs? Well, Daniel Gaylin and colleagues, "Public Attitudes about Health Information Technology, and Its Relationship to Health Care Quality, Costs, and Privacy," Health Services Research, Jan. 2011, available here (subscription), report that a large majority of consumers favor the adoption of EHRs and believe that they will improve quality and that those benefits may outweigh privacy risks. And, in a February Health Affairs article "Many Physicians Are Willing To Use Patients’ Electronic Personal Health Records, But Doctors Differ By Location, Gender, And Practice," available here, Matthew Wynia and colleagues report that although "64 percent [of doctors] have never used a patient’s electronic personal health record, 42 percent would be willing to try." Way to go!

Under the last administration the only approach to EHR adoption was cheerleading. The last two years has seen a lot more than that. In a recent blog post, available here, the outgoing (yet hopefully not yet lame-duck) ONC leader waxed lyrical over the adoption numbers:

In the last two years, however, there has been a significant upward inflection in the adoption rate. For primary care providers, adoption of a basic EHR increased by half from 19.8 percent in 2008 to 29.6 percent in 2010. And with HITECH Act programs now in full swing, it looks clear that adoption and use of health information technology will go into high gear. Already, 81 percent of hospitals and 41 percent of office physicians are saying they intend to achieve meaningful use of EHRs and qualify for Medicare and Medicaid incentive payments. 

In the circumstances perhaps it is only fair to let Dr. Blumenthal lead a few more cheers. 



March 6, 2011 | Permalink | Comments (0) | TrackBack (0)