Author: WorkCompAcademy

The Department of Veterans Affairs said Wednesday it may resume agency-wide adoption of its new electronic health records system next summer, after it was placed on hold in April due to problems involving patient health and safety and frustration among users.

VA officials told members of Congress that introduction of the Oracle Cerner system across 166 additional hospitals could resume in 2024 if the department makes progress on several goals, including a successful rollout in March at the Captain James A. Lovell Federal Health Care Center in Illinois.

The House Veterans Affairs Committee and a House Appropriations subcommittee scheduled hearings this week to receive updates on what originally was supposed to be a $10 billion Oracle Cerner Millennium records system, now used at just five VA sites in the Pacific Northwest and Ohio.

The department is aiming to build a system that is user-friendly to staff members and veterans, has no negative impact on operations, and performs 100% of the time, Dr. Neil Evans, acting program executive director at the VA Electronic Health Record Modernization Integration Office, told members of the House Appropriations Military Construction, Veterans Affairs and Related Agencies subcommittee.

“The path to restarting is to sustain a positive trajectory. We do not need to get to perfection,” Evans said. “On those metrics to exit the reset, we need to see a positive trend improvement in productivity, improvement in user adoption and satisfaction, and improvement in the right direction with regards to technical reliability, which by the way, we’re already starting to see.”

The system was first introduced in October 2020 at the Mann-Grandstaff VA Medical Center in Spokane, Washington, and its affiliated clinics. Almost immediately, it drew criticism from medical providers for its complexity, but also led to delays in care and safety risks for patients.

Its use was expanded to the VA Walla Walla Health Care System in Washington, as well as medical centers in Columbus, Ohio, and Oregon in 2022.

In November 2022, lawmakers raised concerns that two veterans may have died as a result of the system’s complexities — one who never received a needed medication because of issues with prescription tracking in the system and another who missed a medical appointment but received no follow-up because the system didn’t properly record the skipped appointment.

Following reviews by the Government Accountability Office and the VA inspector general that found hundreds of issues with the system, VA leadership decided to halt further deployment until the problems were resolved.

The VA is working with Oracle Cerner, which also provides the electronic health records system MHS Genesis to the Defense Department, to improve operations at the sites where it is being used and to streamline the system to make it more user-friendly and not as complicated to learn.

Among the problems that must be addressed before the system goes live elsewhere, according to VA and Oracle leaders, is “change management” — alleviating the system’s frustration and complexity among users who have spent careers utilizing the VA’s current electronic medical record system, Vista.

“They can almost do [Vista] in their sleep,” Evans said. “Moving to a different system is a change, a significant change, and that change management, I think, has been one of the larger challenges.”

Nonetheless, the system is being tweaked, including 270 changes to make it easier to use, according to officials.

“The feedback around the training, the metrics, were unacceptable and frankly embarrassing,” Oracle Global Industries Executive Vice President Mike Sicilia said during the hearing. “You don’t have to learn to use many IT systems these days. It should be fairly intuitive. That said, there are specialty workflows … that do require some training, but I think you’ll see us move to a just-in-time or iterative model rather than an extended, elongated training.”

VA officials said that with a joint system that allows VA and DoD providers to view both departments’ medical records, along with roughly 90% of records at civilian hospitals, veterans are getting the benefits of a comprehensive electronic medical records program.

But lawmakers remain frustrated over the cost, which included a $1.86 billion request in the fiscal 2024 budget. “This is dangerous on two fronts: People are dying, and it’s costing taxpayers money. Not a little bit of money, a lot of money,” said Rep. Tony Gonzales, R-Texas, a retired Navy master chief petty officer.

Evans said the VA is committed to the program and will make it work. “The department is committed to moving forward as part of the federal electronic health record, in partnership with the Department of Defense. … There is value in doing this together,” Evans said.

“I sure hope so,” said Subcommittee Chairman Rep. John Carter, R-Texas. “We have been in this for a long time.”

Employers and Insurance Carriers need to be mindful of the risks of attorney fee and costs awards, which may – at the end of the day – be a major disincentive for using a courtroom to resolve conflicts. As one appellate jurist wisely observed, “All too often attorney fees become the tail that wags the dog in litigation.” Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993).

An award of fees and costs in litigation may be authorized by statutory provisions, such as in Public Attorney General Actions (PAGA) involving employers. Or by a provision stated in a contract agreed to by the litigating parties before the dispute arose. In the latter instance Cal. Civ. Code §1717(a)(1) provides that attorney’s fees be awarded to the prevailing party in any action on a contract where the contract specifically provides that attorney’s fees and costs shall be awarded to the prevailing party.

The website California Attorney Fees provides a resource tool to practitioners, jurists, and the public about the law governing attorneys’ fees/costs awards, but focused on the law and pragmatic experiences in California state or California federal judicial forums. Their most recent post on Monday provided insights about how attorney fees and costs are allowed, and disallowed, in a report on a Los Angeles County Superior Court (Norwalk) final ruling on attorney’s fees and costs to a prevailing plaintiff in WnG Construction JV, Inc. v. AAA Solar Electric, Inc., et al., L.A. Superior Court Case No. VC065473 [Judge Porras].

Plaintiff WnG won a construction dispute with a contractual fees clause against the defense, winning compensatory damages of about $3.116 million (inclusive of prejudgment interest) despite an offset and plaintiff not winning all that it wanted. However, given that plaintiff did gain much of what it wanted, plaintiff was the prevailing party under the fees clause. Plaintiff then moved for fees and costs, with various law firms submitting fee requests totaling around $2.1 million and with costs claimed of over $205,000.

After some reductions on both counts, Judge Porras awarded fees of about $1.309 million and costs of around $82,000.

Here are some interesting highlights to show his thinking on awarding reasonable fees and costs:

– – An attorney disqualified based on ethical obligation violations is not entitled to any fees, an almost $223,000 reduction;
– – A law firm requesting over $653,000 in fees did not get them because they were involved in a discovery dispute which showed plaintiff deliberately spoliated evidence;
– – The principal law firm did get a majority of its requested fees, although J.D. law clerk/non-J.D. law clerk/secretarial work was not allowed and the main attorney charging $500 per hour for a breach of contract case was reasonable (but not an enhanced $750 hourly rate based on the Laffey Matrix, which the lower court found did not reflect L.A. County rates);
– – A law firm billing for potential post-trial/appellate consultation was not entitled to fees until those events materialized into situations allowing for fee recovery;
– – Although a CCP § 998 offer was rejected and could have potentially resulted in expert fee recoupment (although it is not clear from the record), the failure to identify pre-offer versus post-offer costs did not allow for an award of expert fees without a clearer allocation;
– – Charges for additional or duplicate copies of court reporter transcripts resulted in a reduction of expenses for these items.

The litigation between the parties in this case started with a complaint filed in April 2016, and this month a Notice of Appeal has been filed, thus it is likely there will be several more years of litigation, and subsequent motions for additional attorney fees and costs.

The 11 page Minute Order prepared by Judge Porras is a good read, and good resource on the case law he relied on in making his complex review of the requested attorney fees and costs. Plaintiffs here claimed they paid $2.1 million in attorney fees and costs of $205,000 to ultimately obtain a judgment of $3.116 million in damages.  It would be reasonable to assume the defense also had a similar expense for their attorneys and litigation costs. Overall, it would seem that the parties together spent about $4.5 million in fees and costs to resolve this dispute adjudicated to be worth about $3.116 million. And it is likely that another million or two will be spent on the appeal process over the next few years.  In rough numbers, it will probably cost about $6 million to resolve a $3 million dispute.

Returning then to what was said in 1993 by Justice Wallen in Deane Gardenhome Assn. v. Dentkas, – litigation between a homeowner association and Dentkas – who owned a home there over the color of the paint applied to their home – the homeowner prevailed and filed a motion seeking an award of $11,533 in attorney fees. The trial court denied their request noting, “I remember I made some remarks about this when the case ended. [¶] I think I said don’t come back here looking for attorneys [sic] fees. [¶] My thought is with a micro ounce of cooperation, insight and judgment, this could have been a ten-minute small claims case. [¶] I’m not giving attorneys [sic] fees to anybody.”

On appeal, the trial judge was reversed and Dentkas was awarded attorney fees and costs. In doing so the Court of Appeal noted “We are not at all unsympathetic to the trial court’s concerns. All too often attorney fees become the tail that wags the dog in litigation. Particularly in homeowner disputes such as this where the allegedly offending homeowner, rather than comply with neighborhood demands he or she remove something deemed to be offensive, decides to stand on his or her “property rights.” Often the economic value of what the homeowner gains is minute compared to the litigation costs.”

The Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. 901-50, establishes a comprehensive Federal workers’ compensation system for an employee’s disability or death arising in the course of covered maritime employment. The Office of Workers’ Compensation Programs (OWCP) administers the Longshore and Harbor Workers’ Compensation Act and its extensions.

The Act’s provisions have been extended to (1) contractors working on military bases or U.S. government contracts outside the United States (Defense Base Act, 42 U.S.C. 1651-54); (2) employees of nonappropriated fund instrumentalities (Nonappropriated Fund Instrumentalities Act,5 U.S.C. 8171-73); (3) employees engaged in operations that extract natural resources from the outer continental shelf (Outer Continental Shelf Lands Act, 43 U.S.C. 1333(b)); and (4) private employees in the District of Columbia injured prior to July 26, 1982 (District of Columbia Workers’ Compensation Act of May 17, 1928, Public Law 70-419 (formerly codified at 36 DC Code 501 et seq. (1973) (repealed 1979)). Consequently, the Act and its extensions cover a broad range of claims for injuries that occur throughout the United States and around the world.

OWCP has just proposed new rules for imposing and reviewing civil money penalties prescribed by the Longshore Act. The proposed rules would also set forth the procedures to contest OWCP’s penalty determinations.

The proposed rules would add new sections and amend existing sections to implement the Act’s civil money penalty provisions. The Act allows OWCP to impose a penalty when an employer or insurance carrier fails to timely report a work-related injury or death, 33 U.S.C. 930(e), or fails to timely report its final payment of compensation to a claimant, 33 U.S.C. 914(g). See 20 CFR 702.204, 702.236.

The proposed rule would revise current § 702.204 to provide for graduated penalties for an entity’s failure to timely file, or falsification of, the required report of an employee’s work-related injury or death. See 33 U.S.C. 930(a); 20 CFR 702.201. The proposed rule provides that the penalty assessed will increase for each additional violation the employer has committed over the prior two years.

The current regulation states only the maximum penalty allowable, without providing further guidance or a graduated penalty scheme.

The proposed rule would also add new §§ 702.206, 207, and 208. These proposed sections would add procedures for the District Director to notify entities of failures to accurately and timely file, provide an opportunity for a response before the District Director issues a notice of proposed penalty, and provide guidance to both the District Director and the Director in determining the amount of the proposed penalty and penalty by setting forth aggravating and mitigating factors they may consider.

The proposed rule also contains a new subpart I setting out procedures for challenging proposed penalties and penalties under both § 702.204 (for an entity’s failure to timely file, or falsification of, the required report of an employee’s work-related injury or death) and § 702.236 (for failing to report the termination of payments). These proposed procedures would allow an entity against whom a penalty is assessed the opportunity for a hearing before an administrative law judge, and to petition the Secretary of Labor (Secretary) for further review.

During the hearing, entities would have the opportunity to submit facts and arguments for consideration consistent with the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18).

The ALJ would determine whether the respondent violated the statutory or regulatory provision under which the penalty was assessed and whether the amount of the penalty assessed was appropriate. Consistent with section 557 of the APA, the ALJ’s decision would become the decision of the Agency without further proceedings, unless within 30 days, the respondent requested reconsideration of the ALJ’s decision

The Department invites written comments on the proposed rule from interested parties. Written comments must be received by November 13, 2023.  Written comments may be submitted in on of several methods detailed in the Federal Register announcement of this proposed rule change.

The Federal Register announcement also contains a Section-by-Section Explanation of the proposed rule if you would like a better understanding of what is proposed.

While consumer VR remains a niche product and a massive money-burning venture for Meta CEO Mark Zuckerberg, CNBC reports that the technology is proving to be valuable in certain corners of health care. Kettering Health Dayton is one of dozens of health systems in the U.S. working with emerging technologies like VR as one tool for helping doctors to train on and treat patients.

Just days before assisting in his first major shoulder-replacement surgery last year, Dr. Jake Shine strapped on a virtual reality headset and got to work. As a third-year orthopedics resident at Kettering Health Dayton in Ohio, Shine was standing in the medical center’s designated VR lab with his attending physician, who would oversee the procedure.

Both doctors were wearing Meta Quest 2 headsets as they walked through a 3D simulation of the surgery. The procedure, called a reverse total shoulder arthroplasty, can last around two hours and requires surgeons to carefully navigate around neurovascular structures and the lungs.

For its orthopedics program, Kettering Health Dayton uses software developed by PrecisionOS, a company that builds VR modules for training surgeons, medical residents and medical device representatives. PrecisionOS co-founder and CEO, Dr. Danny Goel, said the company has nearly 80 customers across the globe.

Orthopedics residents at the University of Rochester also use PrecisionOS. Dr. Richard Miller, a retired professor at the university, said the software is “sophisticated” and “very realistic,” especially as a way to learn the steps of a procedure. He finds it so compelling that he’s been actively helping the orthopedics department implement the technology even though he retired three years ago.

Jan Herzhoff, Elsevier Health’s president, is quoted as saying that her company’s Complete HeartX mixed reality offering ”will help prepare medical students for clinical practice by using hyper-realistic 3D models and animations that help them understand and visualize medical issues, such as ventricular fibrillation, and how to apply their knowledge with patients.”

To date, one of the primary applications of VR in health care has been targeted at pain treatment.

“It’s very hard to keep track of pain when you’re in a fantastical cyberdelic world,” said Dr. Brennan Spiegel, director of health services research at Cedars-Sinai in Los Angeles. Spiegel said that when someone is injured, there is both a physical and an emotional component to their pain. Those signals are sent to two different parts of the brain, and VR can serve to tamp down the signals in both regions. “It’s training people how to modify their spotlight of attention so they can swing it away from the painful experiences,” Spiegel said. “Not just the physical, but the emotional experiences.”

Spiegel said Cedars-Sinai is preparing to launch a virtual platform to help people with gastrointestinal issues like Crohn’s disease, celiac disease or acid reflux, as well as others for anxiety, addiction and perimenopausal health.

The technology has also attracted the attention of the U.S. Department of Veterans Affairs, which is using extended reality at more than 160 facilities to help patients with pain management, behavioral therapy and both physical and cognitive rehabilitation. Caitlin Rawlins, the immersive program manager at the VA, said there are currently more than 40 separate use cases for the technology across the agency’s different sites. The VA first introduced extended reality in a limited capacity around 2015, and has found more opportunities to put it to use as the technology has improved.

“I’ve seen it change a whole lot,” Rawlins told CNBC in an interview. “The first virtual reality headset that I used was this big clunky headset that had all these wires it had to be connected to a laptop to function.”

Rawlins said what drew her to extended reality was seeing the immediate response from patients. She recalled the first time she watched a patient use VR. He was a man in his 80s who had just undergone knee replacement surgery. The pain was so severe that opioids didn’t help, Rawlins said.

After mere minutes in VR, he told Rawlins he couldn’t feel the pain in his leg anymore.

″Just using that for a simple 30-minute session can mean the difference between excruciating pain, unable to do the exercises and the ambulation that they need to, to actually get up and move and get ready to go home,” she said.