A while ago, I heard of a medical malpractice lawsuit that
raised a new issue. A doctor was named in a suit by the family of a patient she
had never treated. Her only involvement in the case was that she had accessed
the medical record in her role as the chairman of her department’s quality improvement
committee.
Many people do not realize that every time one looks at an
electronic medical record [EMR] the date, time and duration of that encounter
are recorded. While this serves as a deterrent to those who have no business
looking at a record of someone who is not their patient, the electronic trail
can also be used to ensnare more defendants.
It is in the best interests of the plaintiff’s lawyer to sue
as many people as possible. Why? The more people the plaintiff’s lawyer can question
under oath, the more chance he has to find discrepancies. Discrepancies lead to
credibility issues. If credibility of the defendants can be undermined, the
jury may have doubts.
It is advantageous for the plaintiff’s lawyer to accuse
multiple defendants because sometimes the lawyer can induce someone to point a
finger at another defendant. Even if the suit against the doctor who reviewed a
case for quality improvement, the plaintiff’s lawyer gets a chance to depose
that doctor and possibly trick her into providing ammunition for the suit against
the other doctors.
Defending a suit, even if dismissed, is a costly matter.
I’ve heard of instances where a surgeon, who was sued several times but never
found guilty of negligence, eventually had his premium increased on the grounds
that he was costing his insurance carrier money because of all the claims which
had to be defended.
Another fertile area for plaintiffs is that of nurses’
notes. Nurses are required to document many events for accreditation and
[allegedly] patient safety. In many EMRs, their portion of the chart is easily
overlooked. [I have blogged about this before here.] Even when it is easy to locate, trust
me, no one reads the voluminous repetitive entries. Here’s the problem. A nurse
may have seen, or thought she had seen, something and documented it in the
record. A clever lawyer can then use that information to cross examine the
defendant physician. “Why doctor, even the nurse noticed the drainage from the
wound. Why didn’t you?”
Yes, the EMR is a fertile field for the plaintiffs’ bar to
plow.
ADDENDUM (4/5/12):
This is from today's NEJM: Malpractice claims cost substantial money to defend even when settled without payment.
ADDENDUM (4/5/12):
This is from today's NEJM: Malpractice claims cost substantial money to defend even when settled without payment.
2 comments:
A legitimate concern. This is another example of the tension between seeking the benefits of innovation, on one hand, and avoiding additional liability exposure, on the other. Our tort system tends to chill innovation. The test of malpractice is the conduct of other practitioners in similar circumstances. Almost by definition, an innovation is a departure from current practice. Society's concerns with the costs of defensive medicine are well-founded. A cost that gets too little consideration, however, is the cost of innovations delayed or abandoned.
Another potential advantage to plaintiff of naming multiple parties defendant, BTW, is that one or more might settle pre-trial. The funds so raised can then finance the trial, including the costs of expert fees.
Joe McMenamin
Joseph: I appreciate the comments. Good point about another reason to name many defendants.
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