Over the last several days, Americans have been watching anxiously as a Dallas hospital tracks the results of prematurely releasing a patient with the first US case of Ebola. Texas Health Presbyterian Hospital, which failed to admit Thomas Eric Duncan when he first came to its emergency department, is now the subject of international concern.
How the hospital failed to note the "red flag" of recent West African travel seems to be in dispute. First, the hospital said that Duncan's travel history "would not automatically appear in the physician's standard workflow." The next day, it issued a contradictory statement, saying there was "no flaw" in the way the physician and nursing sections of the EMR interacted in this situation, and that nurses had documented the patient's travel history in a manner that made it available to the whole care team.
Now, you and I will probably never know exactly what happened at Texas Health Presbyterian, or to what extent, if any, its Epic System EMR played a role in the Ebola crisis. And I can live with that. What troubles me greatly is that a contract "gag clause"—barring the hospital from disparaging the EMR vendor—may have more to do with how Texas Health reported on the potentially deadly mistake.
See no evil, hear no evil
Though few consumers are aware of this issue, when doctors or hospitals buy their EMR, they are frequently required to sign off on a contract section known familiarly as the "gag clause." These clauses ban purchasers and users of EMRs from sharing information about problems with the EMR software with anyone outside their organization. Yup, you heard that right. If you've got a complaint about a product you may have paid millions for, well, shut up.
In fact, it wouldn't be surprising at all if Texas Health released its "don't worry, be happy" announcement after getting a hard slap from Epic's lawyers. After all, Epic has billions riding on this case, which could potentially kill some of its pending deals, and if it could force the hospital to "see no evil, hear no evil," it'd certainly be in the EMR giant's interest.
An Epic spokesperson has denied that it would be possible to pressure the hospital into reversing its position, saying that such allegations "overestimate" the vendor's power.
In general, gag clauses are causing a wide range of harm to providers and patients. Of course, not being able to compare notes with peers before buying EMRs is an extremely dodgy practice on its own, as it may trick buyers into choosing software which is deeply flawed or just poorly suited to their purpose. But it gets worse.
According to a 2012 study by the Institute of Medicine, gag clauses can hurt or even kill patients by preventing EMR users from openly discussing the problems they've encountered. The IOM suggests that health IT vendors should be regulated like medical devices, which would force them to report instances of patient harm related to their devices.
Maybe FDA regulation isn't the ideal way to force vendors to drop gag clauses, but as I see it, something has to be done here. Gag clauses may make EMR vendors happy, but they're harmful to providers and patients.