Tuesday, April 3, 2012

Electronic Medical Records: New Opportunities for Plaintiffs’ Lawyers

A New York Times blog about a paper in the Journal of the American College of Surgeons highlighted the emotional toll that a lawsuit takes on a doctor. This reminded me of an interesting situation.

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. 


Joseph P. McMenamin said...

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

Skeptical Scalpel said...

Joseph: I appreciate the comments. Good point about another reason to name many defendants.

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