I have blogged frequently about the gag clauses that have been a standard part of EHR contracts for decades (see, for example: Physician & Nurse Involvement in EHR Design; Patient Safety and EHR Gag Clauses; Gag Clauses in EHR Contracts Documented; Concerns Raised about Patient Safety; Legislation Introduced in Senate to Address Gag Orders in EHR Contracts). Hospital personnel encountering EHR issues that can compromise patient safety are restricted by such clauses from discussing them with anyone other than their EHR vendor. Compare this with drug adverse effects which by law must be reported to the FDA as well as to the relevant pharmaceutical company.
One additional aspect of these gag clauses is that EHR computer screens are deemed proprietary and thus cannot be shared without vendor permission. This topic was the subject of a recent article (see: Electronic Health Record 'Gag Clauses' May Soon Come Off) and below is an excerpt from it:
The federal government's Office of the National Coordinator of Health Information Technology is proposing a new set of rules, based on changes required by Congress in a big 2016 law. Among 700-plus pages of other things, the proposal would ban "gag clauses." "The proposed rule says that there is a growing recognition that prohibiting or restricting communication about health IT software doesn't promote safety," says Dr. Andrew Gettinger, the office's chief clinical officer. "We're seeking public comment to see if there are a lot of gag clauses in use today+...Though there's no official count of how common gag clauses are, a Politico investigation in 2015 used public records requests to turn up a dozen....Electronic health records companies are reviewing the proposed rule.
Meghan Roh, spokeswoman for the records company Epic, says in an email that Epic contracts do not have clauses that prohibit criticism, and that information technology companies consider their screens and code confidential....But Dr.[Raj] Ratwani from MedStar got turned down, he says, when he asked Epic a couple of years ago for permission to share videos of doctors interacting with its software for a research project to advance health-record safety and usability.....His team instead uses videos that simulate challenges with Epic, along with videos of medical staffers using actual records systems from another company, Cerner. They share examples on a new website — EHRSeeWhatWeMean.org. Visitors to the site "can finally see the kinds of usability and safety challenges that are impacting our clinicians and ultimately are impacting our patients," Ratwani says. He is calling for a central reporting system for safety issues with electronic health records, much like the systems used to report problems with drugs or medical devices.
One of the major consequences of EHR contractual gag clauses is to suppress public discussion of patient harm by these products and corrective measures. The EHR spokesperson quoted in the excerpt above twists this issue to emphasize that Epic does not contractually prohibits criticism of the company. I agree -- Epic understands that it would be foolish to put such a prohibition in a contract. Here's additional discussion about EHR errors from Dr. Ratwani's web site referenced in the excerpt above:
...[P]oor usability of EHRs in areas including data entry, visual display, and workflow support is common. These challenges contribute to clinician frustration and burnout—and, importantly, risk patient safety and satisfaction. For example, a confusing visual display of medications could lead to a clinician ordering the wrong medication. Or an automatic refresh of the screen that reorders a patient list could result in the clinician selecting the wrong record to view.
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