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Monday Morning Update 9/3/12

September 1, 2012 News 19 Comments

9-1-2012 8-34-08 AM

From HITEsq: “Re: McKesson. Won its appeal against Epic for patent infringement. The Federal Circuit, en banc (i.e., before all the court of appeals judges), overturned existing law to find in favor of McKesson. The case is remanded to the lower court to decide if Epic really does infringe.” It’s a complex issue, and since I covered it when McKesson lost the original appeal in April 2011, I’ll recap from there. McKesson said Epic’s MyChart violates a McKesson patent for a method of placing visit-specific patient information on a Web page so that patients can schedule appointments and request prescription refills. The original  “joint infringement” decision (about which the three-judge panel argued a lot) was that Epic wasn’t liable since it doesn’t directly offer those capabilities, but rather allows individual patients to request MyChart access subject to the approval of their physician. Since no single party violated McKesson’s patent, the original court said Epic wasn’t liable. Legal experts are troubled with this latest decision, which appears to make “inducing infringement” actionable even if no infringement has been proven. All of this is way over the heads of mere non-lawyer mortals like myself who can’t resist snickering while repeating phrases from the document like “joint tort feasor” in humorous voices because it’s just so weird and funny, so if any legal beagles wish to expound pro bono, here is your electronic lectern.

From Lex Luther  Van Dam: “Re: Epic’s patent for a patient-controlled, patient-generated health record. This is bizarre. Much of this was already on the market when the patent was filed, so either Epic didn’t know or forged ahead anyway, and either is not good. Epic has seemed indifferent to patients controlling their own information, to the point that they don’t even talk about Lucy, their own PHR solution, and they certainly don’t cooperate with anyone else offering a PHR solution.” My guess is that this patent either covered Lucy when it was first being developed or was simply a legal stake in the ground to prevent further legal incidents like the McKesson one above. I also don’t know that Epic’s customers, being turf-protecting and somewhat patient-paternalistic academic medical centers, have a heartfelt interest in empowering their patients via PHRs from Epic or anyone else. Or for that matter, avoiding the “walled gardens” between proprietary EMRs that Farzad was railing against given that Epic-to-Epic direct data exchange has displaced the interest in a vendor-neutral exchange in some areas where most of the major players run Epic.

From MU Nick: “Re: worksheet. Has anyone created a worksheet for MU2 for the EP and EH requirements (as opposed to a PDF?)” If you’ve put something together and are willing to share, let me know.

9-1-2012 2-43-22 PM

From DanburyWhaler: “Re: Western Connecticut Health Network. Hired Steve Laskarzewski, Waterbury’s former CIO, as clinical applications director. Looks like they’re grooming him for the top spot when Kathy DeMatteo steps down later this year.” Steve’s LinkedIn profile says he started in June. He’s one of the 2,716 members of the HIStalk Fan Club that reader Dann started years ago, so he gets a shout out.

From Douglas: “Re: Mr. HIStalk. Why do you use that name?” I needed an e-mail address when I started HIStalk back in 2003, and being in a minimally creative mood at that moment, the best I could come up with was mr_histalk (the name HIStalk itself was equally lame, with the HIS standing for Hospital Information System, which was in vogue at the time). I had zero readers and minimal expectation of gaining any, so I didn’t give it much thought. I don’t recall having actually called myself that at any point, but readers did over time, and then Inga at some point shortened it to Mr. H. It feels odd since I have never even once referred to myself as Mr. Anything in real life since I’m not too impressed with titles in general. My latest pet peeve: family members of dead doctors who stick “Dr.” in the title of their obituary listing instead of just their name like everybody else does, apparently hoping that like Egyptian boy kings, their most valued earthly possession will carry over into the afterlife. Putting “MD” after your name is perfectly fine on your office door, as is “Doctor” in front of your name is for professional encounters. A doctor who is so deficient in self-esteem as to demand the use of those titles in social situations when nobody else is calling themselves Mr. or Ms. is, in my opinion and experience, an arrogant ass. Lots of people earn doctorates, many of them requiring more education than a medical degree, and yet it’s most often an MD (or, in the case of male MDs, their wife) who insists on cramming their title down everybody’s throat at the auto repair place or at school meetings (my theory: that’s why hospital administrators enjoy putting physicians in their place). So, to complete my circular logic, the Mr. HIStalk thing is not indicative of a superiority complex since if anything, my tendency is the opposite.

It’s Labor Day, so I am appropriately laboring (in the non-obstetrical sense). I hope your holiday is – or was, depending on when you’re reading – delightful.

9-1-2012 7-36-19 AM

We are collectively fatigued with the endless Meaningful Use palavering, apparently, as 46% of respondents say they are indifferent to release of the Stage 2 rules. Of those who cared, reaction was split between positive and negative. New poll to your right: if the presidential election were being held today, who would you vote for? An online issues quiz says that I’m exactly evenly split between the two major candidates with a 63% alignment with my beliefs for each, but both are far dwarfed by my 91% match with Libertarian candidate Gary Johnson, who I’d never heard of until I took the quiz. That leaves the same options I had in the last presidential election: vote for either of two candidates that I would dread seeing take office or vote for one I’d like to see win who doesn’t have a chance.

9-1-2012 7-53-33 AM

Surescripts acquires Kryptiq, of which it previously owned a 21% share. Surescripts uses Kryptiq’s secure messaging technology for its network. Other healthcare IT vendors are also among its customers (GE Healthcare and Vitera), and its other offerings include clinical messaging, a patient portal, and electronic prescribing. Kryptiq announced earlier this year that its revenue grew 60% and its user count exceeded 40,000.

Cambridge Health Alliance chooses EDCO’s Solcom electronic document management system for managing historical paper records and paper documents originating outside of CHA. It will integrate that information with its Meditech and Epic systems to eliminate the file room and hybrid record environment.

9-1-2012 3-48-26 PM

Joint Township District Memorial Hospital (OH) chooses the Optimum general accounting suite from NTT Data. The company also announces that its NetSolutions Point-of-Care clinical and billing system for long-term care facilities will now send care data toAssured Proactive Analytics to optimize payment.

9-1-2012 8-04-52 AM

A Wells Fargo Securities report sent over by a couple of readers says that hospital users of Meditech, Cerner, and CPSI lead the pack in total number of Meaningful Use attestations through June 30. On the ambulatory EHR side, it’s Epic, Allscripts, and eClinical Works, although Epic would drop to third if it didn’t have 10,000 Kaiser doctors of its 15,000 attestations. Of new attestations, it’s Cerner and CPSI leading for hospitals (those same two vendors also led in the overall percentage of client base attesting) and athenahealth and Practice Fusion for EPs. A reader, however, notes that the numbers suggest that Epic has 650 hospital customers, which seems awfully high, so there’s always the question of what’s behind the data.

9-1-2012 7-04-01 AM

CoCentrix hires Clayton Ramsey (Elsevier) as SVP of delivery.

I chose this graphic in mentioning the new KLAS evaluation of Meaningful Use consulting firms a few days ago and regretted it the next day when I had more time to ruminate on it. I’m unhappy with how KLAS presented the graphic since they committed the cardinal sin of not setting the Y-axis of the graph to zero. That’s usually a red flag indicating that someone is trying to make an overly dramatic point that their data points don’t support. In this case, the actual range of consulting firm “money’s worth” scores was 7.1 to 8.8, which are pretty good numbers within a fairly narrow spread. The KLAS graph only shows the range of 7.0 to 9.0, making it appear that huge gaps separate the firms, which is absolutely not the case. This doesn’t give me a lot of confidence that the behind-the-scenes work at KLAS is statistically rigorous, a often-made but never-answered charge. I would also question whether this graphic means anything at all considering that the Y-axis is customer-reported value, while the X-axis is “relative cost per resource,” whatever that means. Should we infer that a company with a high per-resource cost can’t be worth it no matter how satisfied their customers are? My main gripes with KLAS (and the Most Wired surveys and HIMSS Analytics and so on ) is their tendency to take a modest amount of data and over-extend it to lofty conclusions using a black box that nobody’s allowed to peer into. I like what they do, but as we healthcare types say, “In God we trust – everybody else bring data.”

9-1-2012 3-07-15 PM

Among the speakers at this past weekend’s health IT conference in Hyderabad, India were Lee Shapiro (Allscripts president) and Marc Probst (Intermountain Healthcare CIO).

9-1-2012 3-50-53 PM

TeraRecon launches its iNtuition Review, iNtuition Enterprise Medical Viewer, and iNtuition SHARE at the AOCR/RANZCR radiology conference in Sydney, Australia. The products provide multi-modality review and the capability to distribute images throughout the enterprise via a browser-based viewer.

9-1-2012 3-17-16 PM

Cancer Care Group (IN) announces that medical information of 55,000 patients and the organization’s own employees was exposed when server backups were stolen from an employee’s locked car. The announcement leads off with, “Patient confidentiality is a top priority,” which is apparently now a bit closer to the truth since they’re suddenly considering encrypting backups and mobile devices. It’s an immutable rule that nobody encrypts anything until they are publicly embarrassed for not having done so, and then they can’t jump on board fast enough.

9-1-2012 3-27-55 PM

Novant Health (NC) rolls out a screensaver featuring former UNC star Michael Jordan to remind employees of its zero-tolerance handwashing program, launched in 2005 after three premature babies died in one of its hospitals from MRSA infection. The source was tracked back to staff who hadn’t washed their hands, which Novant found was common with a compliance rate of only 49%. They’re at 98% now.

In Australia, a hospital CEO sues a nurse who he says disparaged him in her Facebook comments that were brought on by a labor dispute. One of her comments: “We don’t take kindly to misinformation by well-paid fat cats who only visit the hospital wards for photo opportunities.”

9-1-2012 3-30-56 PM

Surgeon and best-selling author Atul Gawande, one of the most visible and respected people in healthcare, apparently is sold on the use of analytics but  isn’t a fan of using technology in his own practice. Some snips from a recent interview:

  • I do use the iPad here and there, but it’s not readily part of the way I can manage the clinic. I would have to put in a lot of effort for me to make it actually useful in my clinic. For example, I need to be able to switch between radiology scans and past records … I haven’t found a better way than paper, honestly. I can flip between screens on my iPad, but it’s too slow and distracting, and it doesn’t let me talk to the patient.
  • I think that information technology is a tool in that, but fundamentally you’re talking about making teams that can go from being disconnected cowboys in care to pit crews that actually work together toward solving a problem.
  • I worry the most about a disconnect between the people who have to use the information and technology and tools, and the people who make them. We see this in the consumer world. Fundamentally, there is not a single [health] application that is remotely like my iPod, which is instantly usable … In many of the companies that have some of the dominant systems out there, I don’t see signs that that’s necessarily going to get any better.
  • The reason [data analytics] works well for the police is not just because you have a bunch of data geeks who are poking at the data and finding interesting things. It’s because they’re paired with people who are responsible for responding to crime, and above all, reducing crime … That’s what’s been missing in health care. We have not married the people who have the data with people who feel responsible for achieving better results at lower costs.
  • Timeliness, I think, is one of the under-recognized but fundamentally powerful aspects because we sometimes over prioritize the comprehensiveness of data and then it’s a year old, which doesn’t make it all that useful. Having data that tells you something that happened this week, that’s transformative.

More on Keane’s HIS-tory this week from Vince.

E-mail Mr. H.

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Currently there are "19 comments" on this Article:

  1. Atul is my man. Telling IT like it is. A combination of paper and some components of HIT is most safe and efficacious. Amen!

  2. In reading the details of the patent in question, it makes me wonder how McKesson OR Epic can really own patent to this. How many talented and promising startups will be stifled because an elephant like Epic has a patent on such a vague business process.

  3. Of course, Atul Gawande abides by, as you state: ” … but as we healthcare types say, “In God we trust – everybody else bring data.”

    Interesting that he states: ‘I haven’t found a better way than paper, honestly.’

    Everyone wants data but the effort behind the widespread deployment of EHR and CPOE systems is not supported by data.

    For instance, where is the outcomes and cost data of the most highly wired award winning hospitals, some of which were awarded such accolades 5 years ago. exactly? Why the silence?

  4. @ScratchingMyHead – to be fair, Epic was hardly the elephant it is now when it got that patent. Remember that 10 years ago before KP it was the little guy in the room.

  5. In re the use of “Dr” by the “Egyptian boy kings”- living and dead. Right on. Most telling are the obit titles with redundancy, e.g. “DR John Q. Successful, MD” Alas, far more common among so-called “educators” than anyone in a health care profession.

  6. @Reality Check –

    Fair point, but you could argue every successful company on the planet was the little guy in the room at some point. When they become elephants, it is interesting to see how they choose to behave.

    Perhaps the jury is still out on how the power and status affects Epic but at a minimum I think we can remove any halo from their head.

  7. Given that back in 1999 John Halamka’s Caregroups PHR tool was providing the same stuff that Epic patented 3 years ago and who knows when McKesson patented it , it seems ridiculous that this is happening in health care. But then again Apple/Samsung/Google/Sun/Motorola/Oracle are playing out the same ridiculous charade, so we’re not on our own in HIT.

    I’m surprised that Henry Ford didn’t claim he invented the production line for cars and patent that….

    About time someone had the Cojones to say, “we invented the thing but we’ll keep our market share by being better” instead of just making lawyers richer and consumers poorer

  8. A patent on electronic communication with patients?? Why not innovate for a search function and to eliminate the gibberish that obfuscates the screens?

    Getting back to my hero, Atul, and his subliminal reasons that he prefers pen and paper:


    Computers are destroying the creative diagnostics and therapeutics of medical care by blunting the creative interaction between the brain, the hands, and the eyes.

    Atul, any thoughts on this?

  9. “I’m surprised that Henry Ford didn’t claim he invented the production line for cars and patent that….”

    Equally broad would have been a patent for human interaction and control of a moterized vehicle by means of a circular wheel to control direction and pedals to control acceleration and braking.

  10. The subject of search function is raised in an earlier comment.

    Mr. HIStalk, are you aware of search functions for tests, medications, operations, doctors’ notes, dates, and /or key words on any of the EHR devices currently on the market?

    For patients with decades of chronicity, this function could save $ billions.

    If any, would you please list the vendors?

  11. Some of the discussion on the Epic/McKesson patent war has centered on how big Epic was when it filed the patent. I don’t see how this is relevant. The purpose of the patent system is to protect intellectual property when someone creates something unique so that they can profit from it. That’s called “Capitalism” and (though under attack during this election year) is still basis for the historic unparalleled economic success of this country. The only important question in filing a patent is how unique is the invention? Does it have significant advantages over the prior art? The size of the company that filed the patent should not matter.

    This brings me to my second point. This patent is basically about pulling data out of a database and presenting it to someone. What’s unique about this? What makes this better than the prior art? Pulling data out of a database and presenting it is the basic function of all IT systems. If you can patent this, then why not patent presenting patient specific data to a healthcare provider? That is, patent the concept of an EHR. That way only one EHR company would exist. Since the patent system is now moving to a “First to file” vs the current “First to invent” system, there is still time to file for this patent. Given the current state of innovation at large EHR companies, I am sure this patent will be their next big healthcare innovation.

    Third point: Most companies couldn’t care less about filing patents to protect innovation. It is ironic, but the system that was supposed to protect and drive innovation is being used to stifle it. A properly filed patent requires a thorough prior art search. As Matthew Holt points out, there was already a PHR out there offering this, thus negating the possibility of a patent being granted. (Even if there wasn’t, there is nothing innovative about this patent. It never should have been filed.) Companies will file for patents without doing any prior art search at all. They know that patent review officers at the patent office are overwhelmed (mean time to a patent being granted is currently 6 yrs). They don’t have the time to do a thorough prior art search and are likely to approve almost anything as long as it is written in flowery legalese. Once granted, these companies use these patents (that protect only obviousness) to file expensive law suits against other companies. No small company that may actually be doing something innovative can survive such a law suit which is the purpose of the useless patent in the first place. Stifle out innovation and maintain the status quo as long as our company can keep making lots of money even if we are hindering the progress of patient care.

  12. I think there was a bigger push for patents at Epic after they went through some of that patent trolling business. I would guess they’re looking at patents more as protection from others than as protection for themselves. I’d be surprised to see them file a patent infringement suit.

    Then again, they’re probably also not so happy with McKesson, so maybe they like to have that card in their pocket. Obviously there’s not a lot of need now for them to file infringement lawsuits anyway since they’re still generating so much business. Who knows what the future holds.

  13. “Immutable rule,” Mr. Histalk? We’ve been encrypting all laptops, tablets etc for quite sometime. Our backup media is encrypted and just this year, we implemented secure USB drives. The secure USB drives means only specialized flash drives will work on them. Any data stored on them is encrypted.

  14. Greg Aharonian is a patent search expert in California and puts out a news letter similar to HISTalk that pertains to patent issues. Below is an excerpt from his 9/10/12 post where a reader writes in that law firms that specialize in Intellectual Property law are advising their clients not to do prior art searches prior to filing patent applications. It is no wonder that McKesson was able to get this piece of obviousness patented.

    The reader wrote in:

    “Your article on the Apple/Samsung’s jury foreman’s obviously invalid
    patent, for lack of any real prior art searching – got me to thinking –
    you do realize that all the big local Bay Area law firms now advise
    companies and entrepreneurs to NOT do ANY prior art searching whatsoever?

    The first time I heard that I was stunned. (I think it was Wilson-Sonsini
    suggesting that.) The next time I heard it was from a Fenwick & West
    patent lawyer. At that point, I confronted the attorney (it was at a
    talk for entrepreneurs), and made her rather uncomfortable pointing out
    that this advice was insane from an entrepreneur/scientist perspective
    doing any real keystone patent work… and that it only made sense for
    very rich companies who were filing defensive, low importance patents.”

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