How doctors should organize
Doctors should form a class action and force EHR conglomerates into free-market interface development
Dr. Eric Topol wrote an excellent op-ed in the New Yorker titled Why Doctors Should Organize. I’m going to spell out exactly how they should organize.
I spent a year as a UCSF postdoc with the leaked tobacco documents. And this article is taken directly from the tobacco-control playbook. In the tobacco wars, we learned that: when a disease is caused by a for-profit industry, the only successful approach is regulation first, followed by treatment.
Doctors should form a nationwide class-action lawsuit against the major EHR companies for cognitive repetitive-strain injury. They can easily prove lost wages and mental strain from technical debt in the software interfaces they are being forced to use. They should demand first-and-foremost that the interfaces are opened to the free market (like an iPhone allows apps to run over its back-end). Any secondary damages gained should be used to form MD-technologist programs at every major medical training site. I’ll explain exactly why, and how below.
Photo by Jennifer Marquez on Unsplash
Yes, I fully admit I’m no Topol. (My spirit animal is a burdensome pigeon named Eagle.) But perhaps an eyes-wide cyberpunk is the voice doctors need these days. I’m steeped in technology, I’ve been forming this concept for years, and I truly think doctors deserve better than they are getting.
Most of my readers are clinicians and technologists, so I’m going to skim over the current state of medtech and clinical practice. We all know it's a war zone and the statistics are gory: 1 in 5 doctors plans to leave their current practice within 2 years, doctors have a higher suicide rate than post-combat troops in the US military, doctors make less than high-school teachers, and physician burnout is at an all-time high. (I’m focusing on doctors here but #ilovenurses too, just substitute your specialty if you're a clinician).
This article was written in response to a conversation with a friend who works for a health insurance company. He described to me with precision exactly how the organization algorithmically identified efficient doctors with legitimate claims, drove them out of private practice by systematically and specifically denying their office’s billings, forced them to join a group practice, and then charged them to convert to institutional EHRs — decreasing their total claim volume.
I got mad. And now I’m going to do something about it.
If you’re a clinician, you don’t need to hear more about the problem. Instead, I’m going to offer a very clear solution.
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Legislation is the only option
Doctors are fighting technology, this is a losing battle. Instead, they need to take control of it.
As I’ve described, the current state of clinical practice was intentionally created by for-profit entities for financial gain. If you’re a hospital administrator, work at an HMO, or are an institutional software developer, and you’re reading this you know this is absolutely true — because you’ve attended the same meetings that I have.
This isn’t just happening to doctors in private practice. In large hospital systems, they are being treated even worse, managed by computer algorithms, isolated, and individually shamed when they fall short.
For-profit markets that cause disease must be regulated before any solutions can be implemented.
Doctors are great, but the regulation of tobacco was arguably the most significant public-health victories of our century. It was successful for three reasons, which were executed sequentially:
Anti-industry advertising,
Multistate class action lawsuits followed by regulation,
Recycling of subsequent damages and taxes into unbiased research funding.
It’s time for lawyers to help doctors. It doesn’t matter if the public sympathizes with their plight — because they probably won’t. It only matters if they have a legitimate legal claim.
Doctors must organize nationally in the US and Canada under a class action lawsuit against institutional software developers, HMOs, and hospitals. They must demand that institutional software systems open interface development to a free market. If they can successfully claim damages, or institute taxation, they must recycle all monies awarded to fund MD-technologist programs at medical schools and unbiased interface research.
Failing to take organized action will result in the end of the profession. Bedside medicine is under real, and undeniable threat. Currently, 60% of doctors would discourage their children from following in their footsteps. And high-IQ candidates are choosing technology over medicine as a career. Meantime, as I’ve already explained, high-tech is circumventing clinicians while they are distracted by endless popups in software that was never designed by a clinician.
Doctors are not, and will never be, happy with data entry — and they are not, and should not be working for, machines.
But the biggest threat is still relatively obscure to physicians. The biggest threat is that artificially-constricted interfaces will shrink doctors' work to predefined algorithms — questions and answers that fit into a checkbox. Then institutions can digitize and automate decision trees based on ritualized language that was never representative of a doctor’s actual cognition or skills.
Why we must crack interfaces
I’ll discuss in another article what type of interface would be more representative of a doctor’s work. But alternate interface designs have yet to be proven or tested. The point is not that one would be better than the other, the point is that one software design team will never cover all the various specialties and use-cases that are needed for meaningful clinician-computer cognitive symbiosis. And individual doctors themselves should be the ones to choose their preferred interactions, just like individuals adapt their cell phones with a suite of small apps that work for them.
Working more efficiently means more control over the use of clinical time. Doctors’ most meaningful work should never be automated. We need to carve out time for clinical tasks like tailoring care to the underserved, kinesthetic physical examinations, complex decisions where patients can practice autonomy in illogical ways, solving emergent problems, and listening to a patient.
“My intent wasn’t to save the world as much as to heal myself.” — Abraham Vergese, Cutting for Stone
We know from radiology that AI is a useful tool, a good cognitive aid. But fast-thinking AI cannot replace slow-thinking physician cognition. Properly applied, AI can help us work more efficiently, but it is meant to automate routine thinking not replace structured evaluations; because it only compounds fast-thinking errors. We need doctors to do their real job.
I’ll explain exactly how doctors could successfully regain control of their cognitive environment, and redesign the application of AI to a cognitive duet.
1. Organize, and stop the infighting
Dr. Topol made a clear case for the need to organize. Doctors need to organize nationally on behalf of patients, and on behalf of themselves and other disciplines.
In the US, the profession has been balkanized from without. They face an excess of administrators without clinical insights. And a masse influx of international clinicians who are disempowered to resist, which creates a brain drain from developing nations. And more importantly, it's been balkanized from within, by infighting and private interests. Trainees and older clinicians are paying the highest price.
The main barrier to physicians' efforts to organize is that they typically organize on behalf of legal third-parties — their patients. Organizing to regulate EHRs offers a clear gain, there is a direct financial case for for-profit entities causing damages to doctors themselves.
A national organization that successfully regulates EHR will be taken seriously for apolitical action on behalf of patients.
Now wouldn’t that be nice? Signup here.
2. Refine the financial case
In order for a class action to be successful, the direct costs to individual doctors from poorly designed EHRs must be clear.
Lawyers study successful class actions like the 1998 forty-six-state Master Settlement Agreement against seven major tobacco companies, or 2019 twenty-three-state opoid settlement against Purdue pharmacy. These cases were successful because they formed strength in numbers, had a clear target, established economic damages, and attracted top litigation firms.
It is not hard to make a case against EHR software. Cognitive repetitive strain injury (RSI) is a novel concept, but there is research emerging that it could be directly tied to decreased motor performance, threat-monitoring depression, and decision fatigue. Clinicians could also just use the physical RSI research regarding the musculoskeletal damages of roughly 4,000 clicks per shift. But it's probably simplest to use the hundreds of studies documenting the increased 6 hours-per-shift they work on repetitive data entry.
There is simply no excuse for the interfaces clinicians are being forced to use. EHR companies began with a 20% profit margin, airlines operate at 13%, while hospitals operate at 8%. It’s not even expensive for EHR companies to fix the problem. Google is well-known for performing A/B usability testing on the millions of users who use their software. Their results on the ideal button size, items per page, and readable text sizes are publically available on the open-source site materialdesign.io. To quote:
“Material Components are interactive building blocks for creating a user interface, and include a built-in states system to communicate focus, selection, activation, error, hover, press, drag, and disabled states.”
Poorly designed clinical interfaces have already been robustly associated with errors, bugs, attention diffraction, and increased time. And there is legal precedent for suing developers for bugs that cause patient harm. But currently it’s individual doctors that are paying the costs directly out of their time, salary, and health.
Most doctors throw themselves and their families on the institutional pyre to protect their patients from systemic chaos on a daily basis. They are working in an unsafe cognitive construction zone. The increased hours they spend in the EHR labyrinth is a slow death by 1,000 cuts to prevent harm to vulnerable third parties. It’s killing them…
And it has to stop.
For collective action, some individual damages which could be directly tied to poorly designed EHRs include:
Unpaid time on clerical tasks. Currently, 13% of a clinician's day is on seeing patients, and doctors are working an additional 10–25 hours per week for free. A legal team would need exact amounts from individual doctors for increased time in a salaried position, decreased billing, and overtime.
Personal lawsuits for medical errors. Ideally, directly these could be tied to a malfunctioning ERR, but also those occurring at the time of EHR implementation. A legal team would need exact amounts from individual doctors for legal fees, lost employment, and resultant increases in liability coverage.
Lost wages from early retirement. Doctors are retiring in droves due to EHR avoidance. A legal team would need exact amounts from individual doctors for career loss, retraining, and lost wages.
Lost wages from depression and burnout. Doctors' suicide rates and burnout scores have skyrocketed. A legal team would need exact amounts from individual doctors for expenses from counseling, therapy, depression, and suicide prevention.
These numbers are available. And evidence-minded doctors can provide them at an individual level. If they do so in enough numbers they will attract a top litigation team. Signup here.
3. Pick a target
“The notion that one EHR should talk to another was a key part of the original vision for the HITECH Act, with the government calling for systems to be eventually interoperable. What the framers of that vision didn’t count on were the business incentives working against it.”
— Kaiser Health News, Death by 1000 Clicks
The obvious legal target is Epic Systems, it’s national, has a terrible interface, doctors hate it, it’s been successfully sued before, and it’s creating a for-profit market monopoly. Less-obvious targets include large hospitals that buy EHRs without due diligence, HMOs that force active and escalating administrative tracking by doctors or hospitals for billing, or any medtech company that can be proven to engage in information blocking (actively preventing EHR interoperability to preserve market interests).
Honestly, any high-profile case will do, if it starts backing doctors' complaints with actual financial damages. Doctors are not being taken seriously, because up till now, although they have been clear, detailed, and even eloquent, they haven’t been talking in the language institutions listen to: regulation, dollar signs, and legal fees.
It’s time to be effective instead. Communication is only valuable if the recipient understands it. Doctors’ abdication of communal legal power does not constitute victimhood.
4. Ask for the right things
Tobacco legislation worked because damages from the initial class-action were not re-absorbed by state budgets. They were put into inviolable funds earmarked only for research into tobacco control.
For a successful class action, doctors must stop looking at the ground they are mired in. They must look at the horizon, and stride confidently toward it. Technology is not going away. It’s time to wrest control of it.
Doctors should demand the following actions:
Free-market interfaces on any institutional software used by more than one clinical specialty. Just like the Harvard SMART platform and iOS/Android app stores. Then small tech companies have a chance to compete to produce an interface you like, and you can choose that interface on an individual or group basis. Physicians can exercise individual buying power instead of feeling powerless.
Technologist training programs at every licensed clinical institution with one-year fellowships so clinicians themselves can design these interfaces. There is no excuse for clinicians' abdication of technology development. (Other than sheer misery, burnout, exhaustion, and heroism. Okay I do get it, I really do.) Physicians can fund their own takeover of medtech, expand their options, and integrate technology the way they did bench research in drug development.
Interoperability so hospitals can rapidly and seamlessly switch vendors at will. It’s unconscionable that major EHR developers silo patient records which are owned by patients themselves. Even Google was unable to crack this nut. But doctors can free the patient record, and with it themselves.
Future options if physicians took this path seriously could include DAO administered EHRs, databases, and even hospitals. But let’s start with one clear victory.
It’s time for doctors to take coordinated action on their concerns. And I don’t mean a conference or committee. I mean confidently and precisely enact legal protections for themselves, and their patients. Failure to act will result in disaster.
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