Millions for tribute, but not one cent for defense: If hospitals cannot afford to legally defend EMR mishaps, should they be investing in them?

Imagine an airline going out and buying new multimillion-dollar jets with increased fuel efficiency and that produce less pollution. However, they knowingly buy them under conditions of not being able to afford to perform complete diagnostics/forensics for the FAA when something goes awry and a plane malfunctions or crashes.


Apparently not in the domain of healthcare IT.

The hospital where my mother was injured (now of blessed memory as a result) has still refused to substantively answer EMR-related questions, after a motion by my mother's attorney to compel discovery.

As part of their legally sworn-truthful response they write:

"The burden and expense of more detailed responses would put a substantial drain on the hospital's limited resources."

If this is true, perhaps hospitals (which generally do have limited resources) should not be spending tens or hundreds of millions of dollars on electronic medical records, a still-experimental technology (link).

It also causes concern about the maintenance state of the current technology.

The general point of which this is a specific example is this:

If hospitals cannot afford to defend/produce forensics for the technology when mishaps inevitably occur (such as in the Feb. 2010 FDA internal memorandum on health IT related mishaps, link, which the director of CDRH states are likely the "tip of the iceberg, link), then perhaps hospitals need to rethink the initial investment and ongoing maintenance/upgrading costs until the technology is more mature.

Should the motto of hospitals be "Millions for IT tribute, but not one cent for defense?"

Finally, in the same brief claiming poverty, I, now representing my deceased mother was referred to as a "self-described expert in computerized medical records" and "critic of use of computerized medical records in hospitals" (as opposed to the reality of my being a critic of misuse of computerized medical records, especially deficient ones, in hospitals).

Just to further nail that point down as to my being a health IT amateur and Luddite, they also included as an attachment to their brief my entire CV and publications history -- 17 pages long - as retrieved from, picture included. (Perhaps I should send the hospital a thank-you note for introducing me to the judge, without my having to lift a finger.)

Also issued were subpoenas for another fifteen or so doctors and practices that saw my mother, in addition to many others in past subpoenas. These records, mostly paper, will need to be reviewed. This will likely be a very profitable piece of work with many billable hours for the retained defense firm's lawyers.

All this was more than one month after the state's Medicare Quality Improvement Organization found my mother's care "did not meet applicable professionally accepted standards of healthcare", and the deficiencies led to the catastrophic "subsequent medical complications" that she filed a complaint about while still lucid. Medicare also set up a monitoring program at the facility "for several quarters" as a result. (This was not mentioned in the defendant's brief to the court.)

In effect, for probably $300+ per hour for legal services in the attempt to defend a case Medicare itself found not to have met
applicable professionally accepted standards of healthcare, the hospital seems to have plenty of money.

Again, the general point here is this:

I believe this type of behavior is not atypical for hospitals today, and is likely another unfortunate manifestation of the medical leadership deficiencies and ethical gaps (e.g., at link, link) commonly noted on this blog.

-- SS