lient to obtain his or her medical records from two different VA’s. Occasionally, the results will be different. The following records are similar, but not completely identical. They are for the same surgical consult. One was from the institution that ordered the surgical consult to be performed at another hospital, because the requestor’s laparoscopic equipment was obsolete; the other was from the institution that received the consult request and was supposed to schedule the consultation and perform the anticipated operation. The physician who ordered the consult requested that it take place inside of one week. The records printed at the hospital that ordered it, appear to indicate that there was no activity on the request between 2/217/05 and 2/22/2005 and it appears that it took five days for the electronic request to travel a little more than a hundred miles;

However, the record for the same consult request, supplied by the hospital that received it includes another entry “(entered)” on 2/18/05 at 08:23:

This shows that it was received by the hospital that was supposed to perform the result the day after it was ordered. This entry apparently resulted in the surgical consult being sent to the psychology department, were it remained for several days before it was redirected to surgery. The point is that sometimes important details are not contained in every copy of what is supposedly the same record. It has taken me years to grasp this concept, only recently have I begun to understand some of the things that may cause this.   2. What is Vista CPRS and More Importantly Where’s My Client’s Data?   VISTA is the acronym for Veterans Health Information Systems and Technology Architecture. CPRS stands for Computerized Patient Record System. I have often been confused by these terms. They are often used incorrectly by many, including members of the VA. In order to avoid further confusion, this is an explanation of these two terms and how they relate to each other to form VISTA CPRS, from a recent Veterans Administration Office of Inspector General’s report:   CPRS is a Vista application that enables health care staff to enter, review, and update administrative, diagnostic, and treatment information for VA patients     Vista – Vista enables the creation of a comprehensive, integrated, electronic record for each patient that is viewable by all clinicians at VA medical facilities, thus eliminating the need for paper medical records. Approximately 100 separate applications are currently in use with Vista including: healthcare provider; registration; financial management; enrollment; patient data exchange and eligibility applications. In 2007, Vista Imaging was implemented which allows multimedia data (for example, radiology images) to be linked to patient’s electronic medical records. VistAWeb allow clinicians to see health data from any other VA facility where the veteran has received health care.   • CPRS – CPRS is a VistA computer application and was initially released in 1996. CPRS provides an integrated electronic patient record system for clinicians, managers, quality management staff, and researchers. CPRS enables electronic order entry and management of all information connected with any patient. The goal of CPRS is to create a user-friendly product that provides critical information through clinical reminders, results reporting, and system feedback so clinicians can make medical decisions regarding orders and treatment. Twenty-eight VistA software applications are integrated with CPRS, which allows clinicians to use CPRS to request laboratory tests, medications, radiology tests, and procedures. Additionally, clinicians can use CPRS to: record patient’s allergies or adverse reactions to medications; request and track consults; enter progress notes, diagnoses, and treatments; and access clinical information from other VA medical facilities.     The VISTA CPRS is a software program that is available from the VA under the Freedom of Information Act, and has served as the basis for many other electronic medical record systems that are in use throughout the world. It was first implemented at many VA’s during the early 1990s. It was been implemented at all VA Medical Center’s by the end of 1996; however, there is a wide range of potential customization available within the program to address unique local practices.   We all have used computer programs that are marketed for use by the public, as they are, “off the shelf;” for example any of the Office 2010 programs, while the program is customizable based on our preferences, the program that you run and the file that is created in Word 2010, on your computer, can be saved as a data file, and then the data transferred by some media to my computer, where the same program should essentially open it up, and display the file on my computer the same way that you saw it. Many of these data files can be forensically examined to see when changes were made, and to analyze the data and metadata, at many different levels.   There are two differences between VISTA CPRS and “off the shelf” programs.  VISTA CPRS has a tremendous amount of options, and levels of customization that differ depending, on how each facility chooses to install and configure it. The only analogy that I can make is that the VISTA CPRS is a lot like Time Matters, and some of the other legal practice management software. These programs are designed to work at law firms ranging from a solo practitioner, to the mega firm with hundreds of attorneys in many different cities. For Time Matters to work at my office, it has required a considerable amount of adjustment to the program, by either a consultant, or me, by getting rid of features that I don’t use, and tweaking the features that I do use. VISTA CPRS is vastly adjustable to allow for the tremendous differences within the VA’s medical system as far as facilities and services that are available at each of the more 1,300 locations that the VA has it installed at. This customization is done through the installation of “business rules.” These are the same rules, that when not properly installed by a facility, result in allowing records to be altered after they have been digitally signed.   Several years ago, when I was younger and had less gray hair, I investigated setting up the VISTA CPRS software on a computer system in my office. I thought that I would be able to get my client’s files electronically from the VA and then be able to view them the same way that the VA’s health care providers did, silly me. I thought Iwould be able to get a forensic evaluation of the data and metadata to look for changes that may have been made. As VISTA CPRS serves as the basis, for several other commercial medical records systems, I found a software consultant who could set up the software, but unfortunately, I have yet to be able to actually get the electronic data from the VA. The reason for this is the manner in which the VA stores the veteran’s electronic data.   Essentially, the veteran’s CPRS file is really nothing more than a directory of other files with the actual data containing the information is stored, somewhere, within the VA’s nationwide computer system for the veteran. The CPRS file for the veteran points to potentially thousands of other files, which contain data for other veterans and may point to data that is actually physically stored in many different physical locations. Recently, I deposed the Director of Information the for the VA’s Connecticut Healthcare System. He told me that in all likelihood most of the data containing my client’s medical information, for his treatment at the West Haven VA in Connecticut, was probably housed in a computer in Brooklyn New York, but that the information that was in Brooklyn, would point to numerous other computers throughout the country where the actual data resided .The VA’s budget documents which, admits that VISTA CPRS is based on twenty-year old technology which has become increasingly difficult to manage. It also confirms that the current system does not store the data in  a veteran specific file. Perhaps this also indicates that in the future, the system may have more problems, than it has had in the past and that our own attention some of these issues should be raised as well. On the occasions when I have tried to obtain the raw CPRS electronic data from the government, I’ve been provided with responses from the US attorney that it would take hundreds of hours to extract the electronic data for my client, so that it could be disclosed to me, without disclosing the data for the other veterans I have yet to encounter the Judge who appears to be interested in making the government provide the electronic data without a showing that there has been some alteration, unless I was willing to reimburse the government for the time that it has to spend “extracting “ it.  So far I have passed on the extracting of data, while I am certain that it will extract a lot of money from me, I am equally sure that it will not extract any information from the VA. Call me a skeptic, but I think that any data that is turned over after the VA’s employees have spent hundred hours “extracting it,” is likely to have had any  have had any useful data “extracted” in the process as well.. If anyone gets a different response, by all means let me know. In the right case, I know that I intend to revisit this issue with the government, but for the meantime I would like to submit some items for you to consider when dealing with the paper copies of these electronic medical records.

What You Get Now is Not What They Saw When They Were Treating the Veteran

The first thing you’ll probably notice is that the electronic medical record will look different, depending upon where it was printed. If it is printed somewhere where it is not intended to be part of a record that is being officially provided pursuant to a medical records authorization, it will have “unofficial copy not for record release on it.” If it is printed pursuant to a medical release, it will not have these words on it. This can be tremendously frustrating and makes it difficult to compare the medical records that the client provided to you before suit, with what you will receive from the government. As I indicated earlier, the veteran’s VISTA CPRS, file does not contain all of the data for your client. It will point to where thousands of other pieces of data reside. When the medical records department prints your client’s file, the results that you will receive will be based on the information that is available to that user, based on that user’s level of access to information in the system, as well as what the user chooses to print out and provide to you. The VISTA CPRS system includes a lot of information about the veteran, which you may not truly think of as part of a medical record, for example there may be a lot of information contained within this record about your client’s eligibility for various VA benefits.  VISTA CPRS also houses risk management reports concerning your client which are protected from disclosure by statute, which the medical records staff will not have access to and cannot print it even if they wanted to. Many of us probably send medical records authorizations asking for the “entire medical record.”  Even when one uses the VA’s VHA Form 10-5345 REQUEST FOR AND AUTHORIZATION TO RELEASE MEDICAL RECORDS” one is not likely to get all of the records. This form is designed to mislead the veteran and allow the VA to release whatever it chooses to release as the language used on the form does not even match the VA’s own definitions. The VHA HANDBOOK 1907.1 (April 15, 2004) defines “medical record” as:

Zz. Medical Record. See subparagraph 4nn, “Health Record”

Unfortunately the term “Health Record,” does not always equal “Medical Record.” “Health Record,” is subject to further definition, that term is defined into two divisions. Invariably, when I have asked for “the entire health record” and find that I did not get something, I am told the clerk interpreted my request using subpart (1) instead of the global definition of the term contained in nn and that I should have asked for the “administrative record” contained in  subsection (2). Now I ask for both divisions in accordance with VA’s own terminology:

nn. Health Record. A health record includes the electronic medical record and the paper record, combined, and is also known as the legal health record. A health record can be comprised of two divisions, which are the:

(1) Health Record. This is the documentation of all types of health care services provided to an individual, in any aspect of health care delivery. It includes individually identifiable data, in any medium, collected and directly used in and/or for documenting health care. The term includes records of care in any health-related setting used by health care professionals while providing patient care services, to review patient data or document their own observations, actions, or instructions. The health record includes all handwritten and computerized components of the documentation.

(2) Administrative Record. This is an official record pertaining to the administrative aspects involved in the care of a patient, including demographics, eligibility, billing, correspondence, and other business-related aspects.

Similarly, requests for medical records, often this may be interpreted to mean progress notes, consult reports, discharge summaries and operative reports. “Orders” are usually not provided, unless they are specifically requested. When they are provided a request for “Orders” may result in the clerk printing merely the “orders” that currently exist and not ones that have been discontinued. How each of these printed entries will appear, may also be affected by the medical records department, based on the amount of detail that they have access to, and in turn chooses to release you.

What They Saw and Proving That They Saw It

    Virtually everyone at the VA has some level of access to the veterans VISTA CPRS file. Including a wide variety of individuals who you may not expect. For example most Veterans Administration medical facilities are served by its own police department and fire department. The VA police have access to certain portions of the veteran’s record and may make entries in certain portions of the veterans record. Generally, anyone who wants to record something in your client’s record, begins by opening a template in your client’s file. Once the template is opened, it will indicate when the note was started based on a time that is assigned from the system. The author can complete this template either by “cutting and pasting” prior entries, which results in length repetitive notes, or filling in text by typing it. Some templates will give the doctor the option to choose from various predefined field. A note remains “free text,” and subject to editing by anyone until it is digitally signed. There are very good reasons why the note should be changeable, while the doctor is still working on it. Any mistake or change can be removed easily, up until the time that an electronic signature is applied to it. After the electronic signature is applied any change to that note is supposed to be impossible, assuming that the local VA’s “business rules” are correctly installed.  If the doctor wants to supplement the note, or correct, the note, it is supposed to be done with an addendum that is attached to the original note. If the physician prepares an electronically signed note on April 1, 2010 saying that the veteran’s “right arm” needs to be removed and then realizes after he signed the note, on April 2, 2010 that he meant to say “left leg” instead of “right arm”, the original note is supposed to remain, but the April 2, 2005 addendum should always be attached and displayed as an addendum to the original incorrect note.   The important thing to take away from this is that any time a note remains unsigned by applying an electronic signature, it is changeable. When you read through the veterans’ medical records and see that the note was started on April 1, 2005, but was not digitally signed until September 1, 2005, it should raise some suspicion. First, during the time from April 1, 2005 through September 1, 2005 anyone could have edited this note. Is there a reason why the doctor would have chosen to leave this note unsigned? Notes that go unsigned for an abnormally long time bear really close scrutiny. When problems arise I have encountered situations where notes had been created by residents, but not signed them.   In one case, after more than 100 days of being unsigned an abnormally long time, the note was signed by the chief of the service. The explanation that was provided was that the resident had moved on it was necessary to electronically sign the note so that it would be “completed” within the system. Now that I have a better understanding of the system, I realize that the electronic signature that was applied by the chief was applied to whatever text was visible when they signed the note. It could be what the resident wrote, or it could have been completely rewritten by the chief, prior to signature. If you see that the resident has entered other notes, or applied electronic signatures after the date of the note in question, this should really raise some red flags in your mind Second, since many notes are created in a template for a specific condition, the template will control not only what the doctor recorded, and was prompted to do, when the doctor completed it, but changes to the template may affect how this information is presented several years later. If the suicide prevention template in 2005 had a field for “last consumption of alcohol” when it was completed, and the suicide prevention template is revised in 2008 to omit that field, when the VA prints the veteran’s records in 2009 that field may not be printed, so any information that was recorded in 2005 may not be given to you.   One of the advantages to the physician of the VISTA CPRS system is that the system drives various medical reports, reminders and alerts to the doctor’s in box, so that they do not need to go and find each veterans record, to follow-up on medical care that they order. I represented a veteran to the VA at West Haven Connecticut to have a fusion along with a pedicle screw implant. After the procedure was over, the resident ordered a CT scan and requested that it be performed on a stat basis. The CT scan was not performed by the time the veteran was ready to be released from the SI ICU, and observant nurse noted in the chart that the CT scan had not been performed and she called the resident who ordered the CT, to determine if it was okay for the veteran to be transferred to a regular floor before the CT scan was done. The resident approved the transfer without the CT scan. The resident who was scheduled to transfer in the near future, to another hospital dictated a discharge report indicating that the CT scan showed the hardware in normal placement. The resident did not sign the discharge report before the resident rotated.   When the veteran was ready for discharge, the replacement resident dictated a second discharge report which omitted any reference to the CT scan, one way or the other. Due to problems in the radiology department the CT scan was performed, but not read for more than a week after the veteran had been discharged to his home which was several hundred miles away. The veteran returned to the West Haven VA for his postop visit more than a week after he had been discharged. The resident, who saw the veteran at the post op follow up visit, did not follow up on the issue of the CT scan. The CT scan was later interpreted to show that the hardware had been misplaced so that it impinged the nerve. Several weeks later, the veteran returned with significant problems. This time the CT scan results were considered and ultimately a second neurosurgeon performed a second operation to reposition the hardware. This veteran’s experiences demonstrated several failures within the VISTA system. First, tracking the CT scan, and receiving the results of the abnormal CT scan, as well as the existence of the first discharge report, which remained unsigned, for more than 90 days. A representative of the West Haven VA radiology department explained it this way:

Q       Back in 2004, was there any process that you’re aware of where a clinician would be notified that radiology results had been completed for certain patients of theirs?

A       Yes. There is a process of view alert for abnormal finding

Q.      And what are view alerts for abnormal findings?

A.      I can just tell you the view alert is we put in a diagnostic code, we put in diagnostic code that equaled abnormal finding. A view alert would go to that clinician saying the report is available for them to look at.

Q       And how would it go to this clinician?

A       Through the Vista system.

Q       And was there any way for the radiology department to track whether or not the recipient of these view alerts had actually viewed them?

A.      No. Not to my knowledge.

VISTA apparently does not leave any record that the doctor received the note, unless they open it and it requires an electronic signature. VISTA still leaves the doctor the argument, that they never got that CT scan that showed the veteran’s abnormal findings.

Q.        When something comes to your inbox in the electronic medical record system, is there something you have to do to click on it someplace to acknowledge you have received it and gotten it?

A.        You have to open it.

Q.        And can you open it and choose not to electronically sign it?

A.        You cannot sign it. You can only sign that which is designated for you to sign.

Q.        So, when you get a report like this, somebody else can open it and close it and there is no indication you read this on December 1 or September 4 or whatever?

A.        Not that I am aware of.

VISTA’s notification system is one of the benefits to the physician that is frequently touted by the VA. It truly is advantageous to both the physician and the veteran when it is properly used. Each day when the physician logs onto the CPRS system they’re provided with a variety of administrative reminders of things that they need to do, unsigned reports, is one of them. The system is supposed to provide the VA’s administration with the ability to oversee incomplete records, and at some point the administration is supposed to deal with the doctor over this. These “view alerts” and whether they are done or undone are kept, or not kept, or defined by the individual hospitals business rules that they use for VISTA CPRS. Unfortunately, when the VA’s doctors do not look at the records, or choose to no not sign a record for a prolonged period of time, the VA chooses to make sure that VISTA CPRS does not memorialize this phenomenon. I was told at one deposition that after 60 days the reports of unsigned reports are deleted by the system, “…to save space…” Why the administrative staff loses interest in reports that are unsigned for more than 60 days remains a mystery to me.   Eventually, after several months, the attending surgeon electronically signed the first discharge report indicating that the hardware was in normal placement. This was well after the veteran had his surgery to remove and reposition the hardware. The attending did not include any information as to why she was signing the resident’s note, there was not even the briefest of mention that the CT scan had in fact shown a different result than the discharge report, or the operation removing and replacing the screws months earlier. Since this document was not electronically signed, the attending could have easily changed the note to include the additional information that would have more accurately reflected what had happened. If it had been already electronically signed by the resident, she would’ve had to make an addendum to it.   In the days of a paper record, if something was changed, it would have to be crossed out, erased, whited out, or smudged in a manner that gave you a fighting chance to realize that something wasn’t right. Today you must be much more alert to see if something has been changed.. The records that you receive are merely a report based on what VISTA CPRS has been programmed to spit out in response to the request that is made of it. The report is pulled from various data fields. Some data fields are used in more than one report, other data fields are unique to specific reports. Some reports, and entries in the medical record, when they are either compiled, to be displayed on a screen at the VA Hospital, or in the clinic records that you receive or a combination of data pulled from various places within the clients electronic data.   To go back to my prior example of Time Matters, one of the features of practice management software is that it allows data to be entered in one field and the data from that field is used by various templates to supply the information for different forms. Entering the client’s name and address in one location in Time Matters, results in Time Matters using that information every time something requires the client’s address, whether it’s a letter of a pleading. When you change the client’s address, the client’s old address does not appear next to the new one, in the next letter all you will see is the new address.   The VA system operates in a similar manner. Some records are designed to show only the information that was present at a specific time period. You may never know what was contained in that field at the time that your client received medical care, if the data that populate that field ever changes. This makes finding changes in the medical record difficult to find. For example, I recently handled a case for a veteran who was scheduled for a routine laparoscopic chlostectomy. The procedure was converted to an open procedure, due to problems that were encountered after the trocar was inserted. What had been scheduled for 2 and ½ hours as a same day procedure, took 7 hours, and resulted in the veteran spending weeks in the hospital, instead of going home that day to her family as planned. When the operation was over, the surgeon, a well qualified attending came out and told the veteran’s husband that when she was opened up, it was more complex than had been anticipated and that he was rushed in to complete the operation.   The operation report, as well as the nurse before operative report both listed the attending physician as the surgeon as doing the entire procedure. The resident was listed as the first assistant surgeon on the copies of these records that my clients received after she was discharged. Neither report made any notation of the attending being called to the operating room, after things did not go well for the resident. All of the written documentation made it seem like the attending was there the whole time. The government claimed that the attending was there the whole time, the veteran’s spouse could not be correct.   When this veteran had originally gone to the ER at the VA, she was correctly diagnosed as having gallstones, within 24 hours of her presentation. The physician ordered that ordered the surgical consult, requested the veteran be seen within one week. Unfortunately, it took the surgical clinic more than a month to schedule the appointment for her to be seen by a surgeon. She was eventually overbooked into an appointment another two weeks that took place six weeks after the ER had requested it. Surgery was originally scheduled for another seven weeks after the consult actually took place.   When the operation was originally scheduled, it was listed with one surgeon. Three weeks before the surgery was originally scheduled for, the VA contacted the veteran and said that we have a cancellation in two days and we are going to move you into it. This resulted in the veteran being assigned to a resident in the surgery scheduling field, which is also what populates the “surgeon” field on the nurse inter operative report, as well as the nurse interoperative report. The nurse interoperative note is supposed to be the record of what happens during the procedure. This report tracts a variety of items including when nursing personnel arrived and be the operating room, as well as the presence of all individuals in the operating room. It notes times for the start and ending of many portions of the operation and it will it is started by the nurse at the beginning of the procedure and completed at the end of the procedure. Understandably this note is open for several hours while the veteran is being operated on. Like many of the VA’s records it is “free text” and editable until it is digitally signed; therefore, any changes or corrections are not visible.   When we received the scheduling document, printed with the request that he showed a history of deletions, it became apparent that one surgeon’s name had been displayed in this field for several weeks. Two days before the operation, it was changed to another surgeon’s name, this time the resident. The resident’s name “RO”was apparently displayed in this field the day before the operation, the resident’s name was there when the plaintiff arrived at the hospital several hours before the operation began, the resident’s name was there when the plaintiff was placed under anesthetic, and when the operation began. Ten minutes after the procedure had been converted, the name of the surgeon changed from the resident “RO” to the attending surgeon “MA”.

The scheduling document shows when changes to various data fields were made:                The lesson that I’ve learned from this is to make sure that I’ve requested that only the records, all audit trails, records of changed values, records of receipt of notifications and alerts, of all record changes, and deletions as well records of all disclosures that have been made of the client’s record, as well as the facility’s business rules and information concerning their implementation.   I would suggest that if you are dealing with one of these cases for the first time that you consider going to the VA’s website and accessing some of the information that is available to you about the system. Currently they have a VISTA CPRS demo system, which you can use, so that you get the feel of the interfaced that the doctors use. Additionally, many of the VA’s VISTA publications can be found on the VA’s website. While my experiences have helped me focus on some these issues have gotten better, I am certain that I am not seeing all of them. I would welcome any other useful information on this issue, because it is going to be one that we are all going to struggle with, as we try to represent veterans       [1] Incorrect Patient Information Displayed: On September 30, 2008, a VA medical facility reported that when a clinician switched from one patient’s record to another, the first patient’s information was sometimes still presented within the second patient’s CPRS display. CPRS v27 was installed at the initial reporting facility on September 24, 2008. In total, 41 VA medical facilities reported this issue (The facilities are identified in Appendix D.), but no patient safety incidents were reported. The issue was reviewed by clinicians and software developers and it was determined that the integrity of the medical record was not comprised because of this software defect in the future. 2 Discontinued Orders No Longer Listed in Proper Sequence: On September 29, 2008, a VA medical facility initially reported that when viewing active orders, CPRS v27 displayed discontinued orders by original order date rather than the date the order was discontinued; hence, this information was improperly presented at the bottom of the screen. This software defect resulted in delays of stopping continuous IV infusion orders for at least nine patients. CPRS v27 was installed at the initial reporting facility on September 21, 2008. In total, nine VA medical facilities observed and reported this problem. Two sites reported that this defect involved one patient at each facility, while the third site reported that the error affected seven patients. The six remaining sites reported that the software defect did not result in any delays in stopping continuous infusion orders. After a review of the medical records for the nine affected patients, VHA determined that no patient suffered any harm resulting from this software defect. 3 Because of the reported software defects associated with CPRS v27, the Office of Information and Technology (OI&T) and VHA developed preliminary plans for strengthening the software release process. On November 17, 2008, VA implemented a requirement that all clinical software releases be approved by the USH. This is the first step in requiring higher levels of review prior to software release. VA is also examining its software testing processes and future releases of CPRS will benefit from any improvements identified in this evaluation. Furthermore, VA has established a Software Application Testing and Review Workgroup, to start in March 2009, to evaluate the testing, review, and approval of software applications to be deployed in VA medical facilities. VHA HANDBOOK 1907.1 HEALTH INFORMATION MANAGEMENT AND HEALTH RECORDS April 15, 2004 6 o Sensitive Records (1) Some specific record types are deemed sensitive and may be maintained under direct supervision of the health information professional, or be flagged as “Sensitive” in VistA, or other facility computerized record repositories. These include, but are not limited to:   (4) Individuals engaged in the presentation of claims before VA, including representatives of veterans’ organizations, or cooperating public or private agencies, or Administrative Tort Claims; and (5) Records involved in Administrative Tort Claim acti   6. Primary achievement will be through transition of VistA-Legacy (VistA) to VistA-Applications Development (VistA-AD) program. VistA-AD will focus on the software applications, while the infrastructure and architectural foundations take place in parallel in the VistA-Foundations Modernization program. Over VistA’s lifespan, it has grown to become the largest and best electronic medical record system in the world. VistA is growing more difficult to support due to: technological age, product maintenance costs and integration difficulties associated with mainstream software languages, tools, and processes. VistA software is written in MUMPS, a 20 year old technology, resulting in diminishing qualified MUMPS software developers. In addition, improvements are also needed such as data storage in veteran-centric format and standard data that is shareable across the enterprise to provide advanced clinical decision support. VistA stores data in a facility-centric format rather than the more useful veteran centric format and the data is not standardized among facilities thus making decision support very difficult.   (2) Limitations on Frequency and Extent.

• USCS Fed Rules Civ Proc R 26
• (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
• (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
• (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
  • (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
  • (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
  • (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

[1] Department of Veterans Affairs  Press Release dated July 10, 2006 http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1152 [2] Stires, David “Technology has transformed the VA Veterans’ hospitals used to be a byword for second-rate care or worse. Now, thanks to technology, they’re national leaders in efficiency and quality.” Fortune May 15, 2006   [3] Department of Veterans Affairs  Press Release dated July 10, 2006 [4] Stires, David “Technology has transformed the VA Veterans’ hospitals used to be a byword for second-rate care or worse. Now, thanks to technology, they’re national leaders in efficiency and quality.” Fortune May 15, 2006   [5] “Incorrect Patient Information Displayed: On September 30, 2008, a VA medical facility reported that when a clinician switched from one patient’s record to another, the first patient’s information was sometimes still presented within the second patient’s CPRS display. CPRS v27 was installed at the initial reporting facility on September 24, 2008. In total, 41 VA medical facilities reported this issue (The facilities are identified in Appendix D.), but no patient safety incidents were reported. The issue was reviewed by clinicians and software developers and it was determined that the integrity of the medical record was not comprised because of this software defect. VA OIG Report “Review of Defects in VA’s CPRS Version 27 and Associated Quality of Care Issues” June 29, 2009 p. 3.

 

VA agrees to $12,000,000  settlement for medical malpractice during brain surgery on veteran at a VA hospital.

December 2, 2013 (WLS) — A Chicago-area Vietnam veteran will get a $12 million medical malpractice settlement from the federal government.   John Johnson suffered severe brain damage during surgery at the Hines VA Hospital five years ago. His lawyers say doctors did not adequately prepare for and monitor his heart condition when he was put under anesthesia. His lawyers say the money will be used to help cover his medical and day-to-day living expenses.

Trouble in Tennessee!

Let’s applaud Chairman Jeff Miller as he takes on the bureaucrats that adversely affect the quality of care that veterans receive.

…executives at the nation’s 152 Department of Veterans Affairs medical centers and regional directors could draw faster penalties for major leadership failures under a House bill expected to be introduced on Tuesday. Rep. Jeff Miller, R-Fla., chairman of the House Veterans’ Affairs committee, said he plans to introduce the legislation in response to the fatal Legionnaires’ disease outbreak at the VA Pittsburgh Healthcare System and other significant health care failures scattered across the country. If approved, the measure would allow the VA secretary in Washington to fire directly or demote any VA senior executives for subpar job performance, according to a copy of the three-page bill obtained by the Tribune-Review. “This legislation would give VA leaders a tool to address a problem that continues to get worse by the day. VA’s widespread and systemic lack of accountability is exacerbating all of its most pressing problems, including the department’s stubborn disability benefits backlog and a mounting toll of at least 31 recent preventable veteran deaths at VA medical centers across the country,” Miller said. “While the vast majority of the VA’s more than 300,000 employees and executives are dedicated and hard-working, the department’s well-documented reluctance to ensure its leaders are held accountable for mistakes is tarnishing the reputation of the organization and may actually be encouraging more veteran suffering instead of preventing it,” he said. VA spokeswoman Ramona Joyce said the department generally does not comment on pending legislation. “At least in my observations, the nonprofessional administrative staff is just this self-perpetuating network. It seems to be beholden to no one except itself,” said W. Robb Graham, a Cherry Hill, N.J., attorney who specializes in VA malpractice cases. “If they’re coming up with a way to begin getting rid of some of these directors and senior people, more power to them.” VA officials in Washington have yet to make clear whether any Pittsburgh VA executives will be disciplined for the Legionnaires’ outbreak. Pittsburgh VA leaders were repeatedly criticized by lawmakers last year when the Centers for Disease Control and Prevention tied the Legionnaires’ outbreak to Legionella-tainted tap water at VA campuses in Oakland and O’Hara. The water likely sickened at least 21 veterans from February 2011 to November 2012 as the Pittsburgh VA failed to control the common bacteria under standard hospital practices, the CDC found. Five of the patients died. Pittsburgh VA CEO Terry Gerigk Wolf and her supervisor at the time, regional VA Director Michael Moreland, received performance bonuses of $12,924 and $15,619, respectively, for fiscal year 2011, which included part of the outbreak period. Pending legislation in Congress would ban such bonuses for senior VA executives for five years and tighten disease-reporting requirements for all VA hospitals, among other new accountability standards. Miller has asked the VA for a review of its performance appraisal system. Under current regulations, the Congressional Research Service found that senior VA executives who might face discipline are entitled to a variety of special considerations. They include written notice, at least 30 days in advance, that identifies specific reasons for proposed disciplinary action. Executives are permitted “a reasonable time” to respond and can file an appeal, among other options. In a statement released by Joyce, VA officials in Washington said they have limited the number of senior executives who receive high rankings and “hold those responsible accountable” any time there’s an “adverse incident.” via VA chief’s disciplinary powers would get boost under Miller bill | TribLIVE.

“Moreland is really on the Move”  He’s taking his $63,000 bonus and running!

Man are we going to miss that guy!He was a tireless self promoter who took bureaucracy to new heights and constantly gave us something to write about.

In what is hopefully the last edition of “Moreland on the Move,” VISN 4 Director, and tireless self promoter, Micheal Moreland has announced that he is keeping his $63,000 bonus and is “retiring” on November 1, 2013. By retiring and giving VISN 4 the opportunity to recover from the discontent, distrust and discord that has plagued it for the last two years, the man who lists on his resume as his specialty “Finding solutions to unsolvable problems,” may have actually taken the first step in solving the biggest problem that faces VISN 4: Michael Moreland. During his last month on the job, we are going to be updating this post with some of the highlights of Mr. Moreland’s career. If there are any Congressional investigations, OIG reports or AFGE posts that we’ve missed, please send us the information and we will add them. We want to recognize the man who inspired our own “got bonus?” campaign.

Malpractice Payouts to U.S. Veterans Reach 12-Year High – Businessweek. Christopher Ellison went to a veterans medical center in Philadelphia to get eight teeth extracted in 2007. What should have been a routine dentist visit left him permanently incapacitated. The $17.5 million Ellison and his family received in a malpractice judgment against the Department of Veterans Affairs was the largest against the agency in a dozen years — and one of more than 400 payments the U.S. government made last year to resolve VA malpractice claims, according to agency records obtained through a Freedom of Information Act request. The total cost came to $91.7 million, also the highest sum in at least 12 years. The cases against the VA have included missed diagnoses, delayed treatment and procedures performed on wrong body parts. U.S. lawmakers and veterans’ advocates say they reflect deep flaws in the agency’s health-care system even as the department tends to more former troops, including those who fought in Iraq and Afghanistan. “The rapid rise in malpractice judgments against VA mirrors the emerging pattern of preventable veteran deaths and other patient safety issues at VA hospitals,” Representative Jeff Miller, a Florida Republican and chairman of the House veterans committee, said in an e-mailed statement. “What’s missing from the equation is not money or manpower — it’s accountability.” ‘Not Warned’ Miller’s committee held a hearing in Pittsburgh today to probe lapses that include a Legionnaires’ disease outbreak at a VA hospital that killed at least five veterans and also led to malpractice claims. The VA’s inspector general is conducting a criminal investigation into the outbreak, which involved bacteria in the hospital system’s water, Robert Petzel, the department’s undersecretary for health, said during the hearing. Family members of veterans who died after being exposed to the bacteria said the VA didn’t immediately let relatives know there was a potential health problem. “For sixteen days my father was allowed to shower and drink the water without any warning,” said Robert Nicklas, whose father, William, a Navy veteran, died last year after the Pittsburgh VA outbreak. “Why were we not warned?” More Patients More veterans are taking advantage of VA medical care, including those requiring more complex treatment. As many as 1.2 million additional soldiers are due to become veterans in the next four years. Some of the soldiers from the wars in Iraq and Afghanistan are suffering post-traumatic stress disorder while others are living with injuries that would have been fatal in World War II or the Vietnam War. The age of recent veterans may be a contributing factor in the rise of claims payments, said W. Robb Graham, an attorney in Cherry Hill, New Jersey, who has represented former troops filing claims against the agency. Younger claimants tend to get larger malpractice payouts, often tied to how long victims will suffer, he said. The median age range of veterans who served after the Sept. 11, 2001, terror attacks in New York and Washington was 25 to 34 years old, according to a 2011 Labor Department study. That’s compared to veterans who served during the World War II, Korean War and Vietnam eras, whose median age range was 65 and older, the study said. Higher Payments “If the VA cuts off the wrong leg of a veteran who is 70 years old and his life expectancy is 75, he’s entitled to five years of damages,” Graham said in a phone interview. “If they cut off the wrong leg of a veteran who is 25, you’re now dealing with someone who is entitled to 50 years of damages.” The department has 152 hospitals and about 19,000 doctors. Last year, the VA tended to 5.6 million veterans, a 32 percent increase from fiscal 2002, according to agency data. “It’s the largest health-care system in the U.S., and they do an incredible amount of good work,” said Jerry Manar, deputy director of national veterans service at the Kansas City, Missouri-based Veterans of Foreign Wars. “However, there are so many more things they could do in terms of oversight that they don’t appear to be doing now. As a consequence, sometimes you wind up with poor results that were avoidable.” The department is “deeply committed to providing the quality care and benefits our nation’s veterans have earned and deserve,” Gina Jackson, a VA spokeswoman, said in an e-mail. “If employee misconduct or failure to meet performance standards is found to have been a factor, VA will take appropriate corrective action immediately.” Taxpayers’ Bill The 2012 malpractice payments stemmed from both court judgments and administration settlements. The payouts, made by the U.S. Treasury’s Judgment Fund, rose 28 percent last year from about $72 million in 2011, the VA records showed. Taxpayers have spent at least $700 million to resolve claims filed against the veterans agency since 2001, according to the data. Many valid VA malpractice claims never get paid, said attorney Graham, who served as a judge advocate general in the Navy in the 1980s. Some are rejected because paperwork isn’t filed properly, he said. “My strong belief is a lot of lawyers don’t know how to sue the VA,” he said. Some law firms aren’t interested in representing people suing the federal government because of laws that limit attorney fees to 25 percent of malpractice awards, Graham said. ‘An Alarming Pattern’ In a May letter, Representative Miller asked President Barack Obama to help address “an alarming pattern of serious and significant patient care issues” at VA medical facilities. The House panel is reviewing the Legionnaires’ outbreak in Pennsylvania, and the department’s handling of two overdose deaths and two suicides at an Atlanta veterans hospital. Also under scrutiny are poor sterilization procedures and possible patient exposure to infectious diseases such as HIV at VA locations. “We are not here as part of a witch-hunt, to make VA look bad or to score political points,” Miller said during the hearing. “We simply want to ensure that veterans across the country are receiving the care and benefits they have earned.” The agency isn’t holding employees, especially executives, accountable for preventable deaths, Miller said. Department officials also gave bonuses to doctors even if they practiced without a license or left residents unsupervised during surgery, according to a Government Accountability Office report last month. VA Bonuses The recipients of $150 million in bonuses to VA health-care providers in fiscal 2011 included a radiologist unable to read a mammogram and an emergency-room doctor who refused to see patients, the report found. Miller has said the VA employees should be punished — not rewarded — for their incompetence. The number of malpractice claims filed with the VA has remained at 1,544 for the past two years, said Jackson, the agency spokeswoman. The leveling off came after a 33 percent spike in cases to 1,670 between 2010 and 2005, according to an October 2011 GAO report. The VA’s malpractice payment rates may be similar to national levels, said Anupam B. Jena, an assistant professor at Harvard Medical School and physician at Massachusetts General Hospital. Ellison’s Case Less than 25 percent of the claims filed against the veterans agency result in payment, according to the VA. About 20 percent of malpractice claims filed with the largest insurer of physicians between 1991 and 2005 resulted in a payment, according to a 2011 study published in the New England Journal of Medicine, said Jena, who worked on the report. Last year’s “noticeable increase” in medical malpractice payments was partly due to an “exceptionally large” $17.5 million court judgment, Jackson said in an e-mail. Such payments are “highly variable from year to year,” she said. That record judgment went to Ellison, who was honorably discharged from the Marines in 2001. He was a 49-year-old electronics technician from Bridgeport, Pennsylvania, in 2007 when he visited the dentist to have eight teeth extracted because of tooth decay and gum disease. During the procedure at a VA facility in Philadelphia, Ellison’s blood pressure dropped several times to “unusually low” levels, his attorney, Shanin Specter, a partner at Kline & Specter P.C., a law firm in the city, said during a 2011 trial. ‘Catastrophic’ Stroke Ellison wasn’t sent to the emergency room, and the dentist continued with the extractions, said Specter, son of Arlen Specter, the former senator from Pennsylvania who served as a Republican for more than 28 years and became a Democrat during his last 20 months in office. Arlen Specter died last year. Ellison had a “catastrophic” stroke while driving his car shortly after leaving the dentist office, Specter said. The government argued that the veteran’s existing health problems caused the stroke, not the care he received at the VA. Ellison had a history of smoking, diabetes, hypertension and many other stroke risk factors, Thomas Johnson, an assistant U.S. attorney, said during the 2011 trial in U.S. District Court in Philadelphia. After the stroke, Ellison was left with limited vocabulary, “severe and pervasive deficits in all mental abilities,” and “negative personality changes,” according to court documents. “He wound up being totally incapacitated, requiring 24-hour-a-day care,” Specter said. “This is about as devastating an injury as a person can have, and that’s what the award reflects.” To contact the reporter on this story: Kathleen Miller in Washington at [email protected] To contact the editor responsible for this story: Stephanie