How the Rich and Influential Get Health Care Different from You and Me: Data About How Very Influential Persons Get Expedited Care

An MSNBC story summarized some new data about how at least a particular subset of the rich can get different health care from you and me:

Expedited Care for the Influential

In a letter published in this week’s Annals of Emergency Medicine, Dr. A.J. Smally of Hartford Hospital and the University of Connecticut reports that more than half of the 33 emergency department medical directors in his state said they routinely provide so-called 'expedited' care to influential people.

The influential people here include "corporate donors, hospital administrators, or, say, the brother-in-law of the president of the board of directors."

This was corroborated by "a survey of 100 emergency doctors nationwide" which showed that "84 of them had given or would given extra attention to an influential person, such as a famous person or a hospital donor."

Dr Smally asserted, "emergency triage protocols mandate treating the sickest patients first, no matter their social status." However, he also acknowledged that influential people will get treated more quickly,

'Somebody calls and says so-and-so is coming in, can you make sure they get good care,' Smally said. 'We bump them up a notch. If everyone is waiting four hours, they might just wait one hour.'

Better "Hotel Services"

The article also noted that influential people are likely to get better "hotel services" from hospitals, presumably at no extra cost to them:

to the head of the Association for Healthcare Philanthropy, a 5,000-memeber organization dedicated to boosting donations, tending to contributors when they’re sick or injured is just part of doing business.

'It is true, we pay attention to our donors,' said Bill McGinly, president and CEO of AHP, who says most development departments are alerted when VIPs enter their hospitals. 'They’ve gone above and beyond. We recognize that their contributions can make a difference to the community.'

In some cases, that care can border on coddling. At Norwalk Hospital in Norwalk, Conn., donors who contribute $100,000 or more are known as 'Navigators' who receive not only a place at the front of the line, but top-tier attention as well.

'We help the family in any which way that we can,' said Carol Brennan-Smith, communications manager for the Norwalk Hospital Foundation. 'If their cell phone has no juice or they need a battery charger. It can be ‘I want lemonade, I want a Ben and Jerry’s Cherry Garcia ice cream.’ If we can do it, we will.'

Grumbling and a Little Dissent
The ER docs involved also seemed unwilling to question the practic, although they did not seem perfectly comfortable with it:

grumbling is common, but to Smally and other ED docs, there’s little moral dilemma. Dr. Michael Carius, chair of the emergency department at Norwalk Hospital, home of the 'Navigators,' said he’s confident that no one is harmed by the practice — and that it actually may wind up doing greater good.

'This is a way of building good will so that when there is a need the hospital has, there’s this favor bank,' he said.

The article only noted briefly that not all would agree with him:

ethicists and patient advocates worry that improved access for VIPs undermines the public mission of community emergency rooms and raises sharp questions about health care equality.

'It’s not fair at the micro-level and I’m not sure it’s fair at the macro-level,' noted Laura Weil, former director of the Health Advocacy Program at Sarah Lawrence College in Bronxville, N.Y.

In my humble opinion, the data and anecdotes summarized in the article raise a host of issues that deserve further thought.

Can the Self-Interested Be Donors, and Should They Receive Favored Treatment from the Government?
First, let us address the issue of donors receiving better "hotel services." I am not sure there are problems with offering better hotel services, as long as they have no direct effect on medical care, for a price to anyone who is willing to pay.

However, the article suggests that the donors receive special services that might not be available to anyone else, even for a price. If so, that challenges their claim to be donors. Donation implies a lack of self interest, and is honored socially, and financially by the US Internal Revenue Service in the form of a tax deduction. If donors are receiving special consideration in return for their donation, their donations may actually be self-interested means to get services they could not buy on the open market, and do not deserve honor.

Even if the donation was given expecting a partial quid pro quo in the form of a service that could otherwise be obtained by others for a price, to the extent that the donations included money paid for services, they may not deserve tax deductions. If the hospitals did not report the donation less the price of the services received in exchange for it, or if the donors did not subtract this amount from their donation before deducting it from their taxes, it might be worth an IRS investigation, perhaps both of the hospitals' non-profit status and the donors' personal tax returns.

I hope the IRS is paying attention to this issue.

Is It Ethical to Give Patients Who Are Not Donors Slower Care for Acute Illnesses?

A much bigger problem is the data suggesting donors, hospital executives, and their relatives may get not only cushier hotel services, but more rapid emergency department care.  Since emergency departments are often operating near capacity, this rapid care for some may mean slower care for others.  In many cases, slower care means more pain, more suffering, more morbidity, and in certain cases, a higher likelihood of dying.

Physicians have an ethical obligation to put each patient's interests ahead of other concerns (like attracting more donations to the hospital). It seems unethical to me to put a less sick patient ahead of a more sick patient because the former is an influential person.

Knowing that sick patients sometimes get delayed care to make way for a VIP may open a whole new area of legal discovery for plaintiffs' lawyers seeking to litigate against hospitals when patients suffer from slow care in the Emergency Department.

I hope plaintiffs' attorneys are paying attention to this issue.

There may also be legal issues for hospitals if the law requires them to make emergency care available to all acutely ill patients. If some hospitals delay emergency care for some acutely ill patients to provide expedited care for some less acutely ill patients because they are influential, there may be legal ramifications.

I hope the US Department of Justice, state attorneys general, and state departments of health are paying attention to this issue.

Does Insulating the Rich and Powerful from the Dysfunctional Health Care System Make for Bad Health Care Policy?
Finally, there is a larger health policy issue. At least a few of my fellow health care dissenters has been known to grimly opine that no real health care reform will take place until some big-wig, or his or her child, spouse, lover, sibling, or parent gets really bad care at the hands of our dysfunctional health care system. However, it appears that the rich and powerful have found ways to make this improbable.

In a number of ways, the rich and powerful have found ways to engineer a deluxe health care system for themselves. We have posted how big corporate executives have access to "executive health insurance" which provides benefits beyond what any normal person can obtain, even from seemingly the best employer paid policy. In 2007, we posted about how one academic medical center had an "A-list" of influential people who got special amenities and more rapid care. Now there is data to suggest this may be common practice.

If the rick and powerful can insulate themselves from the dysfunction of the current health care system, do not expect their sympathy or support in reforming this system. It appears that to truly reform health care, we will have do something about the context, call it a new gilded age, new age of the robber barons, oligarchy, plutocracy, or age of crony capitalism, in which it exists.

All The News That's Fit to Print: New York Times Notices UK National Health IT Project Goes "PfffT"

At my Sept. 22, 2011 post "NPfIT Programme goes PfffT" I wrote about the £12.7bn National Programme for IT in the NHS (National Health Service) in the UK being ended after years of delays, technical difficulties, contractual disputes and rising costs. I had predicted this for years.

Now the New York Times has felt this to be News Fit to Print. The NYT may be alone in terms of US coverage of this situation by national newspapers:

September 27, 2011, 7:40 am
Lessons From Britain’s Health Information Technology Fiasco
New York Times
By STEVE LOHR

Government press releases tend to be bland, earnest blather. But not one posted on the British Department of Health’s Web site last Thursday. Its headline: “Dismantling the NHS National Programme for IT.”

To translate the acronyms a bit, the NHS is Britain’s state-run National Health Service and the program in question was the ambitious drive to computerize England’s health records and let doctors, clinics and hospitals share patient information electronically. The project, begun in 2002, was budgeted at £12 billion (about $19 billion) and the government hailed it as “the world’s biggest civil information technology program.”

Now, regrettably, it likely holds the honor as the "world's biggest civil IT failure."

The British digital health project has been a slow-motion train wreck for some time with last week’s announcement mainly confirmation — and a pledge to change course. (The announcement was also a political gesture, as the Conservative government of David Cameron tries to get as much distance as it can from an unpopular initiative, begun by Tony Blair’s Labor government.)

I addressed train wrecks at my Jan. 20, 2011 post "Healthcare IT Delirium" and showed this picture and caption, only with respect to our own 'National Program for IT in the HHS':

Running off the rails. We seem to be going out of our way looking for this with HIT, sending it out full speed ahead on far too short a track ...

Back to the NYT:

Yet the United States is about to begin its own government-funded drive to accelerate the adoption of electronic health records, with Washington set to hand out more than $20 billion in incentive payments over the next five years. So what are the lessons to be learned from the English experience?

The lessons are mostly covered in this article:

Pessimism, Computer Failure, and Information Systems Development in the Public Sector. (Public Administration Review 67;5:917-929, Sept/Oct. 2007, Shaun Goldfinch, University of Otago, New Zealand). Cautionary article on IT that should be read by every healthcare executive documenting the widespread nature of IT difficulties and failure, the lack of attention to the issues responsible, and recommending much more critical attitudes towards IT. link to pdf

In that article's abstract is nearly all a citizen needs to know:

The majority of information systems developments are
unsuccessful. The larger the development, the more likely
it will be unsuccessful. Despite the persistence of this
problem for decades and the expenditure of vast sums
of money, computer failure has received surprisingly
little attention in the public administration literature.
This article outlines the problems of enthusiasm and
the problems of control, as well as the overwhelming
complexity, that make the failure of large developments
almost inevitable. Rather than the positive view found in
much of the public administration literature, the author
suggests a pessimism when it comes to information systems
development. Aims for information technology should be
modest ones, and in many cases, the risks, uncertainties,
and probability of failure mean that new investments
in technology are not justified. The author argues for a
public official as a recalcitrant, suspicious, and skeptical
adopter of IT. [Irrational exuberance is forbidden! - ed.]

Back to the NYT article again:

I asked three of the best-informed experts on this subject, with firsthand experience in government and health policy: Dr. David J. Brailer, the national coordinator for health information technology in the Bush administration; Dr. David Blumenthal, who held that position in the Obama administration for two years, before recently returning to Harvard; and Richard C. Alvarez, chief executive of the Canada Health Infoway, the nonprofit corporation established to push the adoption of electronic health records in Canada.

Here are some of their comments.

Dr. Brailer on the problem: “What we’re seeing in Britain is the final result of a number of fundamentally bad decisions. … It was classic top-down re-engineering that was forced upon physicians and nurses. The British government treated it as a big procurement program, putting out bids, selecting contractors, picking winners and concentrating their bets. They crushed what had been a pretty vigorous health information technology marketplace in Britain.”

In 2006 or so at a national informatics meeting, I asked David Brailer, then Director of ONCHIT (now ONC) and who I knew from his role prior to that, the question "The UK's NPfIT is having severe difficulties. What are we in the US to do regarding our own program?"

His response: we will learn from their mistakes.

Have we done that? I don't really think so.

... Mr. Alvarez on how Canada and the United States are doing things differently than Britain: “As governments, we’re setting strategy, standards and outcomes in terms of what qualifies as the meaningful use of electronic health records. But we’re not doing the implementation. [Or product selection - ed.] That has to be done at the local level.”

Considering the sorry state of the healthcare IT ecosystem (link), and considering that significant problems in the NPfIT were created through their use of American IT vendors and consultants, that may actually be a mistake, as opposed to picking a product or products and producer that have been vetted by true, unconflicted experts instead of bureaucrats. We may have learned the wrong lessons from the UK's experience.

Another example where we may have learned the wrong lessons:

Dr. Blumenthal on the perils of trying to mandate changes in the work habits of doctors: “In a complex health system, you have an enormous number of independent actors, especially in a system like ours, but in England more than they thought. Physicians and health care professionals have to be part of the process every step of the way. You need to make this a collaborative effort, not a top-down procurement project.”

I believe there has to be a balance of the two: one cannot have pure bottom-up or top-down. It does not work in the setting of a national health IT program. Local politics can be (are?) as bad as, or worse than, national politics.

Dr. Brailer agreed and elaborated: “The experience in Britain is a warning to us. The thing that brought them to their knees was the confrontation with doctors.”

There, I have no arguments, with the additional comment that what also brought them down was this Scott Adams adage:

IGNORING THE ADVICE OF EXPERTS WITHOUT A GOOD REASON

Example: Sure, the experts think you shouldn't ride a bicycle into the eye of a hurricane, but I have my own theory.

-- SS

Oct. 6, 2011 addendum:

Roy Poses opines:

InformaticsMD found that the NY Times has now reported on the "slow motion train wreck" that has been the UK NHS electronic health record project. This brings into the mainstream the notions that electronic health records, and other ballyhooed health care information technology is not a panacea, and that rushing what amounts to medical devices into use before they have been fully developed and adequately tested was not a good idea.

Note that this is not an effort to bash the British. In the US we have not had any obviously better ideas about using health care IT, and much of the technology is shared across countries and marketed by multinational companies. But IMHO, health care IT has been pushed in many countries because it has benefits for big health care organizations:

1) Government agencies (bureaucrats love having numbers to crunch, and health care IT facilitates the use of the guidelines they love to push to show they care about health care quality);

2) Health care insurance companies, non-profit or for-profit (because it facilitates their transactions, and facilitates guidelines as above); but also

3) Drug and device companies (because it allows incorporation of the clinical guidelines they have worked to hard to manipulate to market their products);

4) Hospitals and hospital systems (because it gives their managers more numbers to crunch, and more oversight and power over health care professionals);

5) Not to mention, of course, health care technology corporations.

[I added the numbering - ed.]

In some ways, health care IT benefited from a perfect storm of concordant interests of big health care organizations, but not necessarily from the interests of health care professionals or, most importantly patients. The lesson, again, is that patients' and the public' health, and health care professionals' core values need to take precedence over vested interests of for-profit companies or government agencies.

This taxonomy of why health IT has been pushed is rather predictive of the ills seen with this experimental technology.

-- SS

More Repeats of Talking Points Supporting Making Non-Profit Hospital CEOs Into Millionaires

I have found even more cases of non-profit hospital leaders for whose generous compensation the only support was the usual talking points, without clear evidence on their behalf, and despite obvious concerns based on publicly available data.  In chronological order,

Wellstar

After the firing of its last CEO was later justified by contentions of misconduct and a "special relationship," but countered by accusations of insiders' financial "improprieties," (see this story in the Atlanta Journal Constitution), Wellstar, a non-profit hospital system in Georgia, hired a new CEO, Reynold C Jennings, for hefty price, per the Cherokee Tribune,

He received a five-year contract composed of an initial term of three years and two one-year renewal options.

The contract pays an annual base salary of $975,000, in addition to a bonus that could range from 35 to 65 percent of his annual salary, depending on his performance, [board of trustees chair Randall] Bentley said.

By comparison, Bentley said WellStar’s last CEO, Dr. Greg Simone, earned a base salary last year of $900,000.

Other benefits included in Jennings’ contract are:
Thirty annual paid vacation days, in addition to six holidays.
Payment for time lost from a serious health condition with proper medical certification.
Annual automobile allowance: $12,000.
Annual cell phone allowance: $2,400.
Annual physical exam allowance: $800.
Annual financial planning/tax preparation services: $3,000.
Because Jennings has existing medical and dental coverage and did not want to participate in the benefits plan offered by WellStar, WellStar will also pay him an annual $12,000 allowance for this reason.

The contract also provides for life insurance, a retirement savings plan and long-term disability benefits.

His total compensation thus would have to be more than $1 million, any additional bonus notwithstanding.

The board gave the usual justification for making Mr Jennings a million-dollar plus baby:

'We’re very excited to have someone of his talent and his capability, someone that’s within our community, someone that understands what it takes to take our system to a new level,' said Randall Bentley, chairman of WellStar’s board of trustees. 'We’re very, very excited.'

The WellStar board did not elaborate on Mr Jennings' "talent and capability," or to what "new level" he was expected to take Wellstar. The Cherokee Tribune did note he had a 10 year career in management of Tenet Healthcare, ending in 2007 as Vice Chairman.

Neither the news article nor the board noted Tenet's troubles during Jennings' tenure there, culminating with financial woes and a $395 million settlement of the Redding Medical Center unnecessary heart surgery scandal in 2004 (look here), and a $21 million settlement of US government charges of kickbacks (look here), a $7 million settlement with the government of Florida of charges of fraudulent billing (look here), and a $900 million settlement of federal over-billing complaints (look here, and see our post here), all in 2006.  At least Mr Jennings had experience dealing with allegations of financial improprieties, but if anyone raised questions about hiring someone who lead a for-profit hospital corporation at a time when it seemed steeped in a culture of dubious ethics, they were not reported.

University of California - Davis

The Sacramento Bee noted that:

Last week, UC regents approved a $259,000 raise to $960,000 a year, money paid by hospital fees, not state money or student tuition

for UC Davis Medical Center CEO Ann Madden Rice, justified because,

that another academic hospital was recruiting Rice and offering $1.5 million.

Katehi told The Bee's editorial board today that it was 'not an easy decision' to support the salary hike.

While no one is irreplaceable, she said, the cost and time of replacing Rice would be far greater than the raise.

Just hiring an executive search firm would cost $500,000, Katehi said. Then the search would take a year, and UC Davis would almost certainly end up paying more for Rice's successor. That's just the way the market is, she said.

Rice, the chancellor added, is a great leader.

One wonders whether the decision was informed by Rice's leadership earlier in this year of a lawsuit against the University of California by a group of top university executives who sought a large increase in their pensions at a time that the university was under great fiscal stress (see our post here). That lawsuit drew responses using words like "outrageous," "despicable," and "greed," (not taken out of context) from a variety of people at the university. 

Lifespan

This last story is regrettably local, about Lifespan, the Rhode Island based hospital system, published by the Providence Business News,

A release of Lifespan’s executives’ salary, bonuses and supplemental retirement contributions has been met with great consternation by the Rhode Island Hospital union.

The forms - the U.S. Internal Revenue Service 990 forms for non-profit organizations - show that Lifespan’s nine highest-paid executives received $9.4 million in total compensation in the last reported year, including $1.8 million in bonuses and $2.6 million in supplemental retirement contributions.

Lifespan President and CEO George A. Vecchione received a total of $2.9 million in salary and benefits – including $853,024 in base salary, $522,051 in bonuses, and $1,485,197 in retirement or deferred compensation.

Dr. Timothy J. Babineau, president and CEO of Rhode Island Hospital and The Miriam Hospital, received $1.1 million in salary and benefits – including $573,675, in base salary, $379,376 in bonuses and $92,035 in retirement or deferred compensation.

The defense of these million dollar plus compensation packages was predictable:

Alfred Verrecchia, chairman of Lifespan’s board of directors, said that because of the hospital system’s significant size and complexity, the board places a priority on recruiting and retaining a highly skilled leadership team who can manage in both good and bad times, with the goal of providing the highest quality care to patients. 'The process for setting leadership compensation is undertaken by a board committee and is informed by national surveys provide by the The Hay Group, an independent compensation consultant,' Verrecchia said.

Over the past several years, Verrecchia continued, 'base pay for executives has been relatively flat. A significant portion of the executive pay is at risk and is only paid out if quality, service and financial performance goals established by the compensation committee are achieved.'

Verrecchia praised the current leadership team at Lifespan, saying: 'Lifespan hospitals are fortunate to have a stable, sound leadership team with a proven track record of addressing significant financial challenges in order to continue to fulfill our mission of providing the best and safest care to our patients.'

The system's employees did not all agree:

'We are angry, we feel disrespected,' said Helene Macedo, president of the United Nurses & Allied Professionals which represents 2,200 employees at Rhode Island Hospital.

'It’s not justified, when we see the sacrifice that those of us who are working at the bedside are being asked to make,' she told Providence Business News.

Macedo, an operating room nurse who has been at Rhode Island Hospital for 20 years, was further irked by the fact that Lifespan had just announced a decision to cutting the matching contributions to employee’s 403(b) Fidelity plan for 2011 and eliminating the matching contribution for 2012.

'It looks like another example of corporate greed,' she said, 'when you look at their executives’ salaries, bonuses and supplemental retirement, compared to that of what employees are making – and the sacrifices we’ve been asked to make during the last several years.'

The atmosphere in the hospital, Macedo said, 'is one where we’re counting every penny and cutting every corner. But there doesn’t appear to be any corner-cutting or counting in the corner office.'

Summary

Here were three more examples of million dollar (more or less) non-profit hospital system CEOs. As we have noted frequently, even non-profit hospital systems that are supposed to put their patient care and academic missions, when applicable, first somehow seem increasingly unable to function without yearly making their leaders instant millionaires.

It was striking that the justifications, by boards of trustees or hospital spokespeople, for these indulgent pay packages followed the talking points we have identified before:
-  We pay what everyone else pays
-  CEOs work hard and are brilliant, so they deserve high pay
-  High pay is needed to attract and retain competent, if not brilliant people

Yet in these cases, as in nearly all cases we have discussed before, there were no logical, fact-based arguments why
- the particular CEOs deserved at least what supposedly comparable CEOs got, if not more, and how the comparator group were judged to be comparable;
- why the CEOs were so brilliant, (or in this case, had such "talent and capabilities," was a "great leader," or was "highly skilled," and "stable and sound") when there were at least reasonable but unanswered questions about their leadership based on publicly available information

So despite their hospitals' financial challenges, and despite questions about their previous leadership, more non-profit hospital leaders are becoming million dollar babies, encouraged by boards of trustees who seem to be basing their "stewardship" on the same talking points, rather than reasoned arguments.  One can only wish that the boards who supposedly exercise stewardship over our formerly revered health care institutions actually had to answer some tough questions about the leaders they continue to uncritically endorse.

So ad infinitum, I repeat.... health care organizations need leaders that uphold the core values of health care, and focus on and are accountable for the mission, not on secondary responsibilities that conflict with these values and their mission, and not on self-enrichment. Leaders ought to be rewarded reasonably, but not lavishly, for doing what ultimately improves patient care, or when applicable, good education and good research. On the other hand, those who authorize, direct and implement bad behavior ought to suffer negative consequences sufficient to deter future bad behavior.


If we do not fix the severe problems affecting the leadership and governance of health care, and do not increase accountability, integrity and transparency of health care leadership and governance, we will be as much to blame as the leaders when the system collapses.

Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Might Be Appealing?

As I described in several recent posts on malpractice cases at University of Pittsburgh Medical Center (UPMC) including:

"UPMC and the Sweet death that wasn't very sweet: How EMRs can detract from a clear narrative, and facilitate spoliation and obfuscation of evidence" (link),

and

"Propofol and Other Drug Questions: Was Michael Jackson a UPMC Patient at the Same Time as Samuel Sweet?" (link),

... electronic medical records may offer certain advantages to someone who is going to try to alter medical records.

No whiteout needed, no physical erasures, a difficult to interpret and/or made-hard-to-get audit trail, etc.

Why, one might ask, would a hospital and/or its clinicians attempt such a maneuver, knowing the penalties are likely to be severe?

Because the penalties might not be so severe after all.

While I am not an attorney, this case I came across seems to be readable by those who understand plain English:

ROBERT STROUD, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JAMES H. STROUD, DECEASED, PLAINTIFF, v. ABINGTON MEMORIAL HOSPITAL, ET AL., DEFENDANTS (link to memorandum opinion).

Here is a summary of what allegedly happened that led to the suit:

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

... 1. FACTUAL BACKGROUND

James Stroud was admitted to Hospital for a total right knee replacement on October 25, 2004. (Doc. 45 at 11, ¶ 46.) Following surgery, he remained at Hospital under the medical care of various of the defendants and others. (Id. at 11-14, ¶¶ 47-68.) Plaintiff alleges that during that time, James Stroud complained of nausea and failed to have a bowel movement. (See, e.g., id. at 11, ¶¶ 50, 52.) Plaintiff further alleges that, while various of the defendants and others examined and treated James Stroud, they failed to adequately diagnose and treat his emergent medical condition, later found to be a bowel obstruction or ileus. (Id. at 11-14, ¶¶ 51-68.)

Plaintiff specifically contends that Dr. Paul Crispen, a urology resident under the supervision of urologist Dr. Charles ordered an abdominal/pelvic CT scan to be performed on James Stroud on October 28, 2004 to investigate the cause of his lack of bowel movement. (Id. at 12, ¶ 58-59.) Robert Stroud avers that the CT scan revealed "marked dilation of the small and large bowel, representing either an obstruction or adynamic ileus," but that no action was taken in response to this finding of a potentially serious medical condition. (Id. at 14, ¶ 68-69.) Plaintiff attributes this inaction, at least in part, to the failure by the various treating medical professionals to communicate adequately concerning James Stroud's care and the failure by Hospital to have in place and enforce proper policies and procedures for interdepartmental communication. (See, e.g., id. at 19-21, ¶ 105(n), (q), (r), (aa)-(cc).)

That same day that the scan was performed, October 28, 2004, James Stroud was discharged from Hospital to a rehabilitation center. (Id. at 14, ¶ 70.) The following day, October 29, 2004, he complained of abdominal pain and began vomiting. (Id. at 15, ¶ 73.) He was taken to Hospital's emergency room early that afternoon and was subsequently readmitted. (Id. at 15-16, ¶¶ 74-80.) He was examined and additional diagnostic testing, including an abdominal x-ray series, was ordered, completed, and interpreted later that evening. (Id. at 16-17, ¶¶ 81-95.) By about 11:20 p.m. he began vomiting, became unresponsive, and was unable to be revived. (Id. at 17, ¶¶ 96-98.) He was pronounced dead at 12:08 a.m. on October 30, 2004. (Id. at 17, ¶ 98.)

There were allegations of record concealment and withholding and in finding this, the plaintiffs sought additional punitive damages.

The court nonetheless decided (emphases mine):

... Plaintiff's request for punitive damages is premised on two interrelated theories: (1) that the defendants knew that James Stroud was suffering from a life threatening condition, yet failed to take any action in response to that knowledge (Doc. 45 at 59-61, ¶¶ 210-215, 222); and (2) that after the demise of James Stroud, the defendants took actions to cover up their prior negligence, including the deliberate concealment and withholding of relevant medical records (id. at 60-61, ¶¶ 216-221). Plaintiff's underlying substantive claims are, as we know, for negligence, survival, and wrongful death based on the defendants' allegedly negligent care for James Stroud. Plaintiff alleges no underlying claim concerning the defendants' alleged concealment of prior negligence.

This case is thus closely analogous to the case decided by the Pennsylvania Superior Court in Gallagher [v. Temple University Hospital - ed.], which also concerned a medical malpractice action against a hospital. In Gallagher, the Superior Court held:

[Appellants] asserted an independent claim for punitive damages premised upon the allegedly outrageous conduct of altering and withholding the medical records in an attempt to stymie Mr. Gallagher's guardians from successfully obtaining redress for his Injury by tampering with the discovery of the facts necessary for prosecution of his medical malpractice lawsuit. While this conduct is relevant to show after the fact awareness of negligence on the hospital's part, it does not, however, relate to the conduct alleged to have been negligent, which actually caused the injury. While the conduct surrounding the alleged withholding of certain records and the whiting out of portions of other records, if true, is undoubtedly reprehensible, none of these facts, however, relate to the malpractice being litigated. Nor do these facts assert a separate cause of action sounding in tort. 2005 WL 2649868 at *3.

The Third Circuit has similarly held that a defendant's falsification of relevant records and lying at a deposition to conceal his wrongdoing, while reprehensible, is insufficient to establish the culpable mental state of recklessness necessary to impose punitive damages because it does not support the conclusion that the defendant consciously appreciated the risk of the harm he caused. See Burke, 904 F.2d at 183. In so finding, the court reasoned "that punitive damages are intended to deter risky behavior that causes harm; they are not a sanction for obstruction of justice." Id. (citation omitted).

In the Stroud case the court decided and ordered that:

... (3) Moving Defendants' [i.e., hospital and doctors - ed.] motion to dismiss Plaintiff's claim for punitive damages premised on the theory that Moving Defendants "covered up" their prior negligence is GRANTED and Plaintiff's punitive damages claim on this legal theory is DISMISSED WITH PREJUDICE. [That is, it cannot be raised again - ed.]

One might wonder, then, what hospitals and clinicians have to lose, in a malpractice case they believe is likely to be lost on the merits, for records alteration or concealment that they think they might get away with.

There is the Pennsylvania Medical Care Availability and Reduction of Error (MCARE) Act of 2002 (PDF, see Section 511, "Preservation and accuracy of medical records", pg. 18-19). However, how often is that act enforced, even if a separate complaint (which is non-judicial) about records alteration is made to the PA Bureau of Professional and Occupational Affairs (where large medical centers might have sympathetic friends) and to similar bodies in other states?

The camouflage made possible by EMR's would only add to the temptation to try to alter the case outcome through "reprehensible" records alteration and withholding/stonewalling on the production of EMR screen shots, audit trails and other data.

-- SS

Sept. 30, 2011 addendum:

The court's own use of the term "obstruction of justice" suggests another venue for addressing chart alterations besides civil court:

The crime of obstruction of justice, in United States jurisdictions, refers to the crime of interfering with the work of police, investigators, regulatory agencies, prosecutors, or other (usually government) officials.

Specifically, criminal court.

Sept. 30, 2011 addendum #2:

Apparently a memorandum opinion such as the above "Stroud v. Abington Hospital" does not create precedent (link):

A memorandum opinion or memorandum decision is a judicial opinion that does not create precedent, persuasive or mandatory in some jurisdictions. A memorandum is often brief and written only to announce judgment in a particular case. Depending on the kind of memorandum decision, citation of the opinion as case law may not be accepted.

While there are likely other cases addressing the medical record alteration/withholding issue, to my legally ignorant mind [1], perhaps in addition to criminal charges, "outrageous conduct of altering and withholding the medical records" should be pursued vigorously by plaintiff's attorneys as a basis for punitive damages. This is especially true if the conduct resulted in or contributed to patient harm.

Note:

[1] Perhaps "legal amateur" is a more accurate term in the same way I am a radio amateur or ham (albeit Extra Class) with some technical experience, but not a telecommunications professional who would/should run a mission-critical enterprise telecommunications project -- and in the same way that many in charge of health IT in hospitals are really health IT amateurs with no significant formal training.

-- SS