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Thursday, August 8, 2013

Authorship is not the same as Legal Authentication

One of the challenges I keep running into in the use of CDA are some misunderstandings of its purpose and resulting from that, misinterpretations of what should be done with content within it.  In this case, an assertion was made that a CDA document is created as an extract from an EHR.  The subsequent claim  is that each piece of data in the EHR carries some legal authentication provenance and that should be attested to within the document.

While extraction from an EHR is one way in which a document can be created, it is certainly not the only way, and even in that case, the legal authentication of data in the EHR is still happening at the encounter level, not at the level of the datum.

The focus of the CDA standard is to provide documentation of services performed in the context of a clinical encounter.  For the most part, these are commonly understood to be the reports that providers produce in a consultation, physical examination, intake or discharge from a hospital, or when reporting on a procedure or surgical operation.

In all of these cases, the document serves as the legal and medical record of the encounter.  As such, there really can be one and only one final legal authenticator to meet with both medico-legal and accreditation requirements.  That attestation indicates that the provider is taking legal responsibility for the combination of content in the document. That doesn't mean that they necessarily agree with everything that appears in that record, but it does mean that the document is a true and correct representation of what occurred and the information available to the provider during the encounter.  If there are questions about information contained in the document, the legal authenticator certainly should, and can in CDA, provide any comments about their concerns about any data represented in the document.

I don't want to see an evolution where every datum that ever appears within a document has to carry provenance indicating who originated it and when in order to assign final legal responsibility to that datum.  At some point, the provider taking care of the patient has to agree to that datum in documenting the encounter, and that agreement is a case where there needs to be an assignment of legal responsibility.  If they were misinformed and acted upon it, there is still a case for them being responsible for checking on uncertain data.  After all, who but they are able to evaluate it clinically?  Furthermore, while final responsibility rests with the legal authenticator, anyone who is able to act as an author also has responsibilities.

The idea being promoted here seems to be coming from the need to avoid fraud.  But avoidance of fraud isn't isn't the principal reason for documenting a clinical encounter.  Estimates of improper payments to Medicare range from 3 to 10% overall.  Yet the cost of developing an IT infrastructure which could track data to this level, enforce non-repudiatable attestation to it, and the necessary changes and interruptions in provider workflows required to develop such a change would wind up costing healthcare a great deal more than we could save by doing it.  Is that really where we want to go?

I don't think so.  The point of the EHR is not to avoid fraud, but rather to provide for better care at reduced costs.  Let's not forget that goal and subsequently introduce more effort and cost into the healthcare process just because there is a technical capability that could be executed on.  A car running on hydrogen as a fuel is also technically feasible; why don't we see more of them?  It isn't about technical feasibility.