To Senator Grassely on EHR problems

Senator Chuck Grassely has sent out some letters to several proprietary EHR vendors asking some pretty direct questions. Here is the relevant excerpts.

Over the past year, I have received complaints from patients, medical
practitioners and technologies engineers regarding difficulties they have encountered
with the HIT and CPOE devices in their medical facilities. These complaints include, for
example, faulty software that miscalculated intracranial pressures and interchanged
kilograms and pounds, resulting in incorrect medication dosages.
In addition, it has been reported that HIT/CPOE manufacturers rely on a legal
doctrine known as “learned intermediaries,” to shift responsibility for errors in the HIT
systems to physicians, nurses, pharmacists, and other health care providers. The
manufacturers allegedly argue that the health care provider should be able to identify and
correct errors caused by the software. It has also been reported that HIT/CPOE contracts
with medical facilities may include “hold harmless” provisions that absolve
manufacturers of these products of any liability for errors that are allegedly HIT/CPOE
system or software failures. These contracts may also include “gag orders,” which
prohibit health care providers from disclosing system flaws and software defects.

Furthermore, it was also reported to me that there is no system in place to track,
monitor and report the performance of these systems/devices, which could impact a
health care provider’s ability to make informed decisions regarding the implementation
of an HIT/CPOE system.

To start lets bullet these complaints:

• faulty software with dangerous results
• avoidance of liability using legalize
• gag clauses
• no open data on bugs and problems

I submit that these are problems arise from the quasi-monopoly that these companies aquire with their software licenses. A definition of monopoly is:

a market in which there are many buyers but only one seller

The government does a pretty good job of breaking up simple monopolies, monopolies where there is simply one provider of a service and that is all there is to it. The government does a pretty bad job of preventing what you might call “staged monopolies”, which is more commonly referred to as “vendor lock in”.

I love simplified examples. When you are on the outside of a movie theater, there is a competition for your movie dollar. You can drive to another theater, you can go home and watch a rented DVD, or a movie downloaded from the Internet. But the moment you pay for the ticket, the competition portion of the movie experience is over. If you looked at the items available from the concession stand -inside- a movie theater you will see a clear pattern:

• The items available are all high-profit items. Healthy sandwiches require lots of labor relative to popcorn, but would not sell for much more…
• The items available are all enticing, but what is enticing might not be very good for you.
• Everything is overpriced.
• The service is typically non-existent.

Once you have purchased your movie ticket, the movie theater has won the competition and also earned the ability to overcharge you for everything else. Also, the movie theater is very strict about forbidding outside food.. it has to be in order to protect its cash cow. Its not a particular theater that is at fault here, it is the basic structure of the deal itself. All of the theaters have the same deal, and all of the theaters offer the same high-priced, artery-clogging fare. They have to in order to stay competitive with each other.

The movie goer knows that the basic deal they are making is a bad one. If they wanted to have a healthy movie, they would rent a DVD and stop by Subway on the way home.

The problem with doctors purchasing proprietary EHR systems is that the problems that you are seeing are the direct and necessary consequences of the monopoly that a proprietary software license provides to the EHR software vendor. Proprietary software vendors are competing carefully -before- the EHR is purchased, but once the doctor has bought the system he is trapped.

Why the gag orders? Because the EHR vendors compete only -before- the EHR purchase, they have a huge incentive to provide the doctors with slanted data during that stage. How do they do they do that? They chose one customer who is really happy with their product and they have tours of that facility and they write white papers about that facility and they provide that facility as a reference. They might have 95 facilities who are furious with them and 5 who love them, but if they have a gag order in the contract then they can use the 5 to provide a skewed view to new clients.

You have already pointed out that there is no open system for reporting the flaws in EHR systems. All of the companies that you survey will give you lots of information about their sophisticated systems for tracking software errors. But these systems are closed, and as a result, there is no way for a particular doctor to know if the software problem he is having is common or unusual. There is no way for the doctor to recognize that he or she is the victim of systematic neglect or is the only person on the planet with a given problem.

Gag orders and closed reporting systems are two tactics in a much larger struggle between proprietary EHR vendors and EHR consumers. The struggle is to control the information available to EHR purchasers. This is not the only way proprietary EHR companies skew the data. They use organizations like HIMSS and the EHRVA to provide an air of legitimacy and professionalism. There are organizations that provide EHR “reports” that are supposedly objective, however, these types of evaluating organizations typically also serve as “consultants” to EHR companies. In short the EHR companies pay off the “researchers”. There is no equivalent to “Consumer Reports” in the EHR market (although there are some organizations that are trying). If a doctor is reading a report comparing EHR vendors, that report was very probably made by someone who was paid by those vendors.

There is a tremendous financial incentive to control information that impacts EHR sales, and lack of objective information is one of the big problems that your constituents are facing.

Now lets talk about the software bugs. We can talk about to classes of software bugs, bugs that are so huge that they blow up a salesman’s presentation of an EHR, and all of the other bugs that are not that big. I can assure you that the average proprietary EHR system does not have many sales-destroying bugs.

Bug-fixing isan expense, and a big one. Lets imagine that this year, software company X will discover 100 bugs in their software. Now, how will the “bottom line” be impacted if they fix 90 bugs vs 10 bugs. The answer? very little. There is simply no financial incentive to provide a greater reponse to EHR bugs. Their customers are trapped. When a doctor uses an EHR even for a short time, that doctor makes three important investments, time, money and patient data. Once they have chosen a vendor, it is almost always a worse deal to leave the vendor then it is to continue to accept poor service from that vendor. If they leave, they have to buy a new system, learn a new system and migrate patient data. It just costs too much.

Its just like the movie patron. Every time I pay six dollars for fifty cents worth of coca-cola, I resent the movie theater. I -could- leave and go somewhere else, but then I would loose the price of the tickets, and not get to see that movie tonight; too expensive. So I suck it up and pay six dollars for a small coke.

Again, it is not the proprietary EHR vendor itself that is at fault, it is the basic unfairness of the bargain.

Your last concern was regarding the legal loopholes that EHR vendors use to avoid the liability that occurs when their software causes medical errors that hurt people.

The simple reality on this issue is that no EHR company, proprietary or otherwise can afford to share medical liability with a doctor. A single death or serious injury that could be tied to the EHR vendor instead of the doctor could put the vendor out of business. If they could not avoid the liability contractually, they would have to insure against it, and the cost of that insurance would be roughly on par with cost of the medical malpractice that the doctor is forced to pay. If any EHR company is exposed to these levels of potential liability, then the stimulus money from ARRA will not make a dent in the new costs of EHR systems.

Software bugs are a simple reality. EHR software bugs, have and will continue to kill people. This is a difficult thing for politicians to face, but that -is- an acceptable cost of moving to EHR systems. If I told you that by causing 100 deaths a year I could prevent all of the traffic accidents in the United States in the same year you would jump at that offer! The math is really that simple: how may people will EHR bugs kill? vs how many will be saved through pervasive availability of EHR technology?

The problem is that right now, no one know what the true cost of these EHR bugs except proprietary EHR companies who stand to profit greatly by keeping the information secret and keeping the number of people killed by bugs as high as possible. Fixing bugs is a tremendous expense and the EHR companies have a financial incentive to only fix as many bugs as it takes to keep their clients from leaving. Because the cost of leaving is so high to EHR clients, the number of bugs fixed is low indeed. The current system incentivize proprietary EHR vendors to keep the information about deadly bugs a secret and to fix as few of them as possible.

The solution? The doctors must discern that the deal is bad, and seek a better one.

People are watching less and less movies at theaters. People have learned that there is a much better deal available. Buy a nice TV, rent the same movies for a fraction of the cost, cook whatever you want to eat and watch the movie from your comfortable sofa. The market is pushing people away from the crappy monopoly deal and towards the better deal without any monopolistic component. Movie theaters are responding..  now many movie theaters have removed rows of seating to make room for tables and are offering full restaurant style meals at reasonable prices… along with seeing a movie. A much better deal.

For EHR vendors, the better deal is this: An open source EHR.

Here is why an Open Source license prevents the problems you are mentioning:

First, the competition never stops, the open source license give the EHR buyer the right to fire the EHR vendor, and hire another one, without migrating software. That means that the end of the sales process does not mean the end of the competition. If an EHR vendor tried to have a client sign a gag order, that client could find another vendor to implement the first vendors software offering. If the open source EHR vendor failed to fix a critical software bug, the client could find another vendor to do it, or even do it themselves. All open source software vendors of note publish bugs publicly, in fact they will even accept bugs discovered by people using the software who are not paying the software vendor. Open Source software naturally produces open bug reporting, competition for the fixing of bugs, and no gag orders (or other silly contract stunts). What about liability? By making the basic relationship fair, and focusing vendor competition on reducing bugs the software is made safer through the natural action of commerce, rather than the artificial safety provided by lawsuits. Critical bugs, like the ones mentioned in your letter, will be fixed overnight, or somebody will get fired. That’s a much better deal than ensuring that when someone is killed after 4 months of living with a known bug, there are more people to sue.

But do not take my word for it.

I would encourage you to send your letter and questions to Mike Doyle, the CEO of Medsphere (an important Open Source EHR vendor) and compare his answers to those provided by the vendors you have already sent letters to. Do not worry about time, it will only take Mike a day or two to answer the questions. Most of the information is already online, he could just send you a bunch of hyperlinks. Medsphere is not the only good Open Source EHR vendor, but their responses will be typical of the industry. I can provide you with 10 other Open Source EHR companies if you would like.

What do I want you to do about all this? Nothing. Open Source EHR systems wins in the end anyways…

Do think of me the next time you watch a movie at home…

-Fred Trotter