DECEMBER 6 — What if your profession has never required much computer literacy — and then all of a sudden it does. Should you be fired? Should your licence be yanked?
That’s the question raised by the bizarre case of Anna Konopka, a physician who claims that New Hampshire has barred her from the practice of medicine because she does not know how to use the internet.
Konopka, 84, received the bulk of her medical training overseas. She voluntarily surrendered her licence this fall after allegations that she was not participating in New Hampshire’s new mandatory system for reporting opioid prescriptions. Why not? Because to do so she would have to go online — something for which she lacks the requisite skill.
Konopka has long tried to keep the digital revolution at bay. Here’s the Washington Post on Konopka’s office:
Aside from a fax machine and landline telephone, there isn’t much technology.
Instead, her patients’ records are tucked into two file cabinets, which sit in a tiny office next door to her 160-year-old clapboard house in New London, NH Records are meticulously handwritten, she said. Konopka does have a typewriter, but it’s broken, and its parts have been discontinued.
New London is a rural town with a population of 4,000 and change. Many of Konopka’s patients are uninsured, but if you have US$50 she’ll treat you, and if you don’t you can pay her later. It’s a niche market but an important one. Rural patients are notoriously underserved.
As a doctor, Konopka gets mostly high grades. New Hampshire Public Radio interviewed some of those she’s treated and found big fans:
To talk with her patients is to hear story after story of medical turn-around, of admiration and gratitude. Unlike other doctors, Konopka listens and spends time with you, her patients say. She learns your family history, your physical and mental state. She doesn’t simply rush you out the door with a prescription.
But that’s all over now. To settle the charges Konopka agreed to give up her licence. Her lawsuit seeking to overturn the settlement on grounds of coercion was dismissed.
As part of the deal, Konopka agreed that should she ever seek to get her licence back, she will have to meet the requirements for new entrants into the practice of medicine — which means being able to use the internet.
In addition to Konopka’s unfamiliarity with the technology, she also has objections that we might term ideological. Here’s part of an interview she gave to the website Ars Technica:
“I am getting the patients from the system, and I see how badly they are mistreated and misdiagnosed or not diagnosed at all,” she said.
“Therefore, I am not going to compromise patients’ lives or health for the system. Because I am out of the system, it was almost like in Communism, you were like the enemy and you had to be destroyed.”
So Konopka’s refusal to adopt what she derides as “electronic medicine” is not only a matter of familiarity with the technology; she also seems to believe that the whole enterprise is a bad idea. She is hardly the only doctor to complain that the accelerating switch to digital records has harmed patient care. (Although many experts argue to the contrary.)
But the system she rejects has its points, and there are perfectly good reasons to require a degree of computer literacy from medical professionals.
Put aside the question of reporting on opioid use. Just consider the enormous amount of information that we nowadays expect providers to have at their fingertips. The latest research. The latest scans and lab reports. The latest messages from other doctors.
And those who practice rural medicine, because specialists often are far away, may have the greatest need for the latest technology.
On the other hand, if Konopka’s patients are mostly happy, we should at least be wary of snatching away her licence not because she doesn’t know her medicine but because she doesn’t keep up with the technology.
Whatever the right answer, one thing is clear: As the digital revolution continues, the issue raised by what happened to Konopka will arise more and more. Imagine the aging but beloved professor who teaches brilliantly but runs afoul of a newly adopted university rule requiring that all student papers and faculty comments be submitted online.
Or the experienced and savvy police officer who is befuddled when the department announces that information formerly recorded on paper in triplicate must henceforth be typed into the online system. Should they be pensioned off, even though excellent at their work, because new information technology has supplanted what they have used throughout their careers?
The question isn’t just hypothetical. Ever since the US Supreme Court decided in 2005 that disparate-impact claims can be brought under the Age Discrimination in Employment Act, employers and their lawyers have wondered whether a requirement that new hires be computer literate might one day form the basis for a lawsuit by older applicants.
The Equal Employment Opportunity Commission takes the view that employers may consider “technological skills” as long as “the assessments are accurate and not influenced by common age-based stereotypes.” But this tells us at best how employers may treat new applicants, not how they may treat existing employees.
Where the issue involves not employment but licensure, we should be even more vigilant for the possibility of overreach.
Licensing boards always say that they are protecting the public, and sometimes they do, but they also limit entry into the professions, and protect the interests (and income) of insiders. And in the case of rural medicine, it’s not as if the market offers the typical patient a lot of alternatives.
I’m not arguing that Konopka should get her licence back, and I’m aware that there have been other complaints about her practice.
But the issues raised by her case are not going to go away. As the pace of technological change accelerates, all of us will sooner or later find ourselves unable to keep up. The question is whether, when that happens, the workplace should make allowances ... or show us the door.
* Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to US Supreme Court Justice Thurgood Marshall. His novels include ‘The Emperor of Ocean Park’ and ‘Back Channel,’ and his nonfiction includes ‘Civility’ and ‘Integrity.’
** This is the personal opinion of the columnist.