Subscribe to The Podcast by KevinMD. Watch on YouTube. Catch up on old episodes!

A pediatrician gave a child vaccines the chart said he needed. The record showing he had already had them was buried in the system. Dennis Hursh is a health law attorney and founder of Physician Agreements Health Law. This episode is based on his article “EMR errors get blamed on physicians, not systems,” published on KevinMD. The health system did not fix the record system. It counseled the physician and moved to put her on a corrective action plan for failing to follow its vaccine policy. He explains why she resigned rather than carry that on her record, what a corrective action plan does to you at credentialing for the next five years, and why a non-compete means she will not see those patients again after 40 years in that community. He also walks through the contract language he negotiates: an agreed independent reviewer, and 60 days to fix anything the reviewer finds. Stay to the end for his argument that due process belongs in your contract before anyone accuses you of poor quality care.

This episode is brought to you by ModMed.

Welcome to your new AI-Powered Practice from ModMed. We’re transforming specialty care by embedding AI Assistants across your entire workflow. Our all-in-one platform of EHR, patient engagement, practice management, and RCM helps reduce repetitive work while keeping you firmly in control.

Trained on de-identified data from nearly a billion patient encounters, this isn’t just smarter software. It’s a new way of working for specialty medicine, more efficient and more connected to the patient experience.

Start building your AI-Powered Practice at modmed.com.

VISIT SPONSOR → https://www.modmed.com/

SUBSCRIBE TO THE PODCAST → https://www.kevinmd.com/podcast

Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast. Today, we welcome back again our friend Dennis Hursh, health law attorney. Today’s KevinMD article is “EMR errors get blamed on physicians, not systems.” Dennis, welcome back to the show.

Dennis Hursh: Yeah, thanks. It’s good to be here.

Kevin Pho: All right, so tell us what your latest article is about.

Dennis Hursh: Well, an actual case, and I think it’s pretty hair-raising. I had a pediatrician contact me who was in trouble with the hospital. What happened was she had a routine wellness visit, looked at the medical records, which were Epic, and it looked like the kid needed vaccines. So she said to dad, who was in with the kid, “Hey, I think we need some vaccines here.” Dad said, “Well, I’m going to talk to mom.” So they called mom. Mom said, “Yeah, give him the vaccines.” They gave the shots, walked out into the waiting room where grandma was waiting, and grandma said, “I’m sure he’s up to date on his shots. What happened?” They went back and looked, and after an exhaustive search, they found under something called Media in Epic that there was in fact a record that the kid had had the vaccines.

Now, if this were non-physicians listening, they’d say, “OK, I know what happens now. The health system obviously apologized to the physician and the parents and said, ‘We will fix the issue. This is a systems problem. We’re on top of it. Not to worry.'” But since physicians are listening, you probably know what happened. The physician was counseled. This was the physician’s error in not somehow finding it. And they really were serious about it. The parents complained, so they kind of had to do something, but again, they didn’t fix the system. They tried to train the physician, and they literally were going to put this physician on a corrective action plan because, and I quote, “She failed to follow the health system’s vaccine policy.”

Now, any new employer looking at that is going to say, “She’s an anti-vaxxer. She probably brings her patients in and tells them to eat more red meat and drink raw milk, and you don’t need these vaccines.” So it would have been devastating to her career. She felt she had no choice, but she actually resigned so that she wouldn’t get that corrective action plan on her record. Of course, there’s a covenant not to compete. So the bottom line is that community lost a pediatrician who was very, very popular, had been there many, many years, and she’s never going to see any of her patients again.

And again, if ever there was a system error and not a physician error, this was clearly it. So it just boggled my mind, and I kind of had to vent, and that’s where the article came from.

Kevin Pho: So I can see this happening not just in pediatric wellness checks, but this happens in primary care all across the country, and I’m sure that this scenario is certainly plausible. You have a new family that comes in, and their medical records may not have been on Epic, and in that case it gets scanned in, and it’s in all different sections, and sometimes it’s difficult to find. So from what I’m understanding of this story, this particular physician or this physician’s staff wasn’t able to locate that this patient had a vaccine previously, and then decided, of course, give it anyway, and it turned out to be a duplicate vaccine.

How much do you know about the case? Do you know whether the family was counseled that there was a potential that it may have been a duplicate? How exhaustive was the search? Did the physician themselves do the search, or was it delegated to a staff member? What kind of details can you supply?

Dennis Hursh: I believe the staff member did it. But again, we could blame the staff member, but if a kid’s coming in for a vaccine, who’s going to say, “And make sure you go through the media portion”?

And it’s funny, after this article came out, I had a physician call me and said, “My health system is just the same. The EMR’s a mess.” And it was the same health system. I didn’t identify it and I didn’t tell her, but it was the same health system. The story I got from her was about a gastroenterologist. If a cardiologist sees your patient, sends a letter to the primary care, and CCs the gastro in July of ’24, it may be scanned in in March of ’25, and the letter will be dated March of ’25, and frequently it’s shown as coming from the gastroenterologist. So if you’re looking for cardiology on that patient, you better read every single thing. If you know the docs, you would know that a gastroenterologist sent it, and you probably wouldn’t be looking, you wouldn’t check that letter if you were looking for cardiac issues.

So it really is a huge problem. And again, we fixed it by blaming the doc. That’s the easy way to do it, and it’s a lot cheaper certainly than, I can’t imagine what it would cost to get that system fixed up.

And I pointed out in the article, imagine if the Federal Aviation Administration did that. We wouldn’t need it to be nearly as big. Maybe one MBA could run the whole thing. And Boeing 727s start falling out of the sky, and the obvious solution is we have to bring the pilots in on their time off and train them on how to handle a plane that’s lost all power. I mean, it’s exactly the same. But the FAA says, “Oh, let’s check all the systems. Let’s check the gear. Let’s check everything else.” Like I said, imagine if they were run like health care. I’d be afraid to get on a plane, honestly, knowing anything that happens is the pilot’s fault.

Kevin Pho: So whenever we have you on, we talk about, of course, contracts, and we talk about the impact on physicians’ lives. So in this particular story, you told us that the hospital recommended or forced a physician to undergo corrective action. From a contract standpoint, once a physician is faced with that demand or choice, what kind of recourse do they have? Can they say no? Do they have to do it? Should they obtain counsel? What are their choices at that point?

Dennis Hursh: They should, but if it got to that point, I think you have a bad contract. When I review contracts, I always ask for a provision that says if there’s a quality of care issue, we have a set procedure we follow, that if you think the physician had poor quality care, the physician and the health system agree on a third-party reviewer to come in and look at it, that they both agree to the reviewer. The reviewer decides, is that poor quality care? Yes, no. If the reviewer says it is poor quality care, the physician has 60 days to fix it, and if the physician doesn’t fix it in 60 days, then the physician can be terminated.

And I think that’s important because I can’t imagine an independent reviewer coming in and saying, “Yeah, this was poor quality care on the part of the physician.” But again, the system just says, “Well, somebody’s to blame. You’re the captain of the ship, so it’s obviously you.”

Kevin Pho: So you’re saying that this particular scenario could have been mitigated during the contract negotiation process potentially?

Dennis Hursh: Yeah, and I think it would have fixed it. As I said, I can’t imagine an independent reviewer saying, “Yes, that’s poor quality care that you’ve given.” So I think she would have walked.

Kevin Pho: So tell us in general what the impact of a corrective action like this is on a physician’s career.

Dennis Hursh: Well, when you do credentialing, that’s one of the questions they always ask. “Have you been in a corrective action plan? Have you been mentored? Have you done that?” So that’s going to follow you for five years. It’s going to really make it more difficult to get a position than if somebody says, “No, I haven’t,” because people tend to feel where there’s smoke, there’s fire. And any physician will say, “I was blameless.” You can’t really pick out this physician from somebody that really did leave a scalpel in a patient or something.

Kevin Pho: And something like this can’t be explained away because let’s say this comes up during a credential meeting, and if this pediatrician simply told the story about what happened, is this something that could be understood in future credentialing meetings as a systems oversight?

Dennis Hursh: It could, but it’s just an issue. And again, we’re going to hear your side of the story. We see from the health system that we identified an issue, and we put this physician in a corrective action plan. A physician in any situation, good, bad, or ugly, is always going to say, “Well, I wasn’t really to blame. Let me tell you what happened,” and phrase it in such a way that they appear blameless or at least less to blame. So I think there’s a good chance that she could have been hired even after this, but it certainly would have made it a lot more difficult. And again, she’s going to be explaining that for the next five years.

Kevin Pho: So you told us that this physician eventually resigned. Was that the only choice that she could have made to avoid a corrective action?

Dennis Hursh: We could have fought it, pretty much. I mean, the health system was going to do a corrective action. So we could have tried to negotiate and say, “No, we don’t want a corrective action. We want to do this.” But at this point I can’t say as I blame her. She’s been in the community 40 years. She was totally fed up with the health system, and she just said, “If that’s the way they’re going to treat me this time, then I’m out.”

Because when something like that happens, you’re more under the microscope. And any physician, I mean, I know you’re a fine physician, but if we went through all your charts very carefully, I’ll bet we could find something that maybe wasn’t done precisely the way every other physician would have done it. So once you’re under the microscope, things get bad. And if you’re terminated for poor quality of care, that’s really going to be very difficult to come back from.

Kevin Pho: And would future employers know that you resigned because of a pending or a potential corrective action?

Dennis Hursh: No. One of the things we agreed to was the letter that she would get from the employer, and it was simply that she worked here from this time to this time, and she resigned her medical staff privileges voluntarily as a result of termination of her employment. And so we negotiated so that it isn’t clear what happened.

Kevin Pho: So as we reflect on this story, and as you think about this story, what are some of the lessons physicians should come away with after hearing about this?

Dennis Hursh: Well, I think it is make sure your contract has due process rights for you if you’re accused of poor quality care. And a lot of times physicians poo-poo this because they say, “I’m a great physician. It’s not going to happen to me.” Well, I think this was a great physician too, and it happened to her. So I think the biggest thing is make sure that there’s some kind of due process before you are put into a corrective action plan or something else that indicates you’re giving poor quality care.

Kevin Pho: And in most cases, is this due process normally included, or in most cases does it have to be negotiated in?

Dennis Hursh: Mostly it has to be negotiated. Most people say, “We can terminate you for poor quality care,” or do disciplinary actions based on poor quality care. And physicians look at that and say, “Oh yeah, that’s fair. If I’m doing poor quality care, they should fire me.” But they don’t think in terms of what’s the hospital going to call poor quality care.

Kevin Pho: We’re talking to Dennis Hursh. He’s a health law attorney. Today’s KevinMD article is “EMR errors get blamed on physicians, not systems.” As always, Dennis, let’s share some take-home messages that you want to leave with the KevinMD audience.

Dennis Hursh: Well, again, I think make sure your contract gives you due process rights if you are in trouble for poor quality care. Again, that blindsides physicians all the time because they say, “Well, I don’t do poor quality care, so it doesn’t apply to me.” And the fact that you didn’t do poor quality care doesn’t mean the health system won’t contend that you did.

Kevin Pho: And I’m going to end off with just that observation that this particular physician was in her community for 40 years, and a story like this, where there was an EMR oversight, she left under these unceremonious conditions, says a lot about our current health care system.

Dennis Hursh: Oh, yeah. Yeah, it’s shocking. Like I said, if the FAA were run the same way, none of us would fly.

Kevin Pho: Dennis, thanks again for sharing your perspective and insight.

Dennis Hursh: Sure. It’s my pleasure.