Medical tech companies take their bot battle to Fourth Circuit

RICHMOND, Va. (CN) — A medical diagnostic company and a health care software provider argued before the Fourth Circuit on Tuesday in an access dispute concerning patient health care records at skilled nursing facilities.

PointClickCare hosts patient information for nursing facilities — a digital equivalent to clipboards at the end of the bed —  and has introduced anti-bot measures to reduce Real Time Medical Systems’ presence on their servers.

Real Time has contracts with the nursing facilities that give it access to PointClickCare’s servers, and it uses that access to identify medical changes in a patient and alerts health care providers when they need to step in. It does this using bots that analyze real-time clinical data, which PointClickCare has attempted to block using increasingly indecipherable CAPTCHAs.

A lower court had required PointClickCare to allow Real Time’s bots to proceed, scolding the software provider for engaging in anticompetitive behavior after it introduced its own competing product.

In court Tuesday, PointClickCare’s attorney Jeremy Bylund contended that the bots are a burden on the company’s servers, which are designed for manual access by health care workers. High numbers of bots cost the company money and causes disruptions and outages, he said.

“They’re very parasitic,” Bylund said.

Real Time has accused the software company of trying to sabotage its business, which is fully automated and would require hundreds of people working around the clock to produce the same level of medical reporting. PointClickCare entered into merger negotiations, then withdrew after receiving proprietary information about Real Time, after which it began introducing the CAPTCHA process that escalates to blocking human access to records, Real Time says.

PointClickCare says in its appellate brief that it is well within its rights to implement security protocols protecting patient data, including CAPTCHAs. It says it blocks bots to protect the performance of its IT systems.

“My client is part of the health care team,” said Marie Bruce, representing Real Time. “We are trying to get medical records that the patient has when it’s in these particular nursing facilities… So that we can help the skilled nursing facilities provide care to its patients.”

But Bylund said the court should vacate the Maryland court’s preliminary injunction, because the parties aren’t able to reach “agreeable terms” under the Cures Act, which is intended to allow patients to easily make decisions concerning their electronic health information.

One exemption from providing records is based on the manner in which records are requested. If the way data is requested is inconvenient for a company, Bylund argued, it can deny the request if they’re unable to come to a reasonable agreement.

PointClickCare doesn’t have to provide Real Time access, he said, and doesn’t have to prove that it isn’t possible to provide it access.

PointClickCare could provide Real Time the data, but the companies haven’t been able to come to an agreement on what that process would look like, Bylund said. That lack of agreement means PointClickCare isn’t required to fulfill Real Time’s request for the health data.

“The reason they (the terms) were unagreeable is because the bots were unacceptable,” he said. “What they requested was unacceptable to us.”

“Where does it say that, in the manner exception, that I have to sit there with 700 people every day for 24 hours a day to pull down information that’s in an electronic health record that you maintain in an electronic format that you won’t let me have because I’m your competitor?” Bruce challenged, claiming that PointClickCare is using the exemption to control who can access its records while allowing other automated users.

Real Time wants the injunction upheld because it allows continued business while litigation continues. Should it be vacated, Bruce said, PointClickCare has not been open to discussing alternative methods for getting the data, which is crucial to Real Time’s business model.

“The agreement that they wanted us to sign would not have allowed us to compete with them,” said Bruce. “How am I supposed to sign an agreement, your honors, that says I’m not allowed to compete with them, when in fact, all I do is compete with them? ”

U.S. Circuit Judge James Wynn Jr. struggled with the idea that the companies’ lack of agreement would exempt PointClickCare from providing Real Time with data.

“It’s really not ‘cannot reach an agreement.’ It’s ‘cannot reach agreeable terms.’ That’s the term that’s bothered me, it’s that agreeable term,” the Barack Obama appointee said. “What the heck is that? When you think about it, if you can’t reach an agreement, you can’t reach an agreement because you won’t agree. But could you reach agreeable terms? It’s really fuzzy.”

U.S. Circuit Judge Toby Heytens pointed out that ultimately, as PointClickCare’s contract with nursing facilities doesn’t allow them to use bots, that PointClickCare should be concerned with the breach of contract by their customers that is allowing Real Time to access its systems in the first place. Real Time only has access to the data through their contracts with the skilled nursing facilities, Heytens said, and the facilities are violating their contract with PointClickCare by allowing bot access to its servers.

“You have no legal right to access that information except that is derivative of a skilled nursing facility,” the Joe Biden appointee told Real Time.

“Real Time wants a permanent backdoor exception to run their contractually prohibited bots on our system,” a PointClickCare spokesperson said. “And they continue to pursue dubious claims for their commercial benefit, ignoring the real risks to privacy and security of health care data. We urge the court to vacate the injunction and help protect patients and the broader health care industry.”

U.S. Circuit Court Judge Roger Gregory, a George W. Bush appointee, rounded out the panel.

Bruce did not respond to a request for comment.

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