Joel Diamond 2/25/09

I love the HIStalk entries describing "odd lawsuits". Unfortunately, these seem to be an increasing norm in the business of healthcare. Those of us who practice on the front lines often feel that we have a malpractice target painted on our backs. It always amazes me how public policy experts downplay the huge financial burden of defensive medicine.

A few years ago, while covering for another physician, I was asked to see a young woman in the hospital who had been admitted for chest pain. She was scheduled for some diagnostic testing before I ever met her. During one of her tests, a small piece of equipment came loose and touched her chest, causing no harm. I was contacted and made arrangements for incident reports, investigation into procedures, and additional X-rays to rule out injury. 

After all this was completed, I visited the patient and met her for the first time. I apologized for what happened and assured her that I would personally follow up on the incident report that was filed. She responded to me, "No need to worry, Doctor, ’cause as soon as I leave here, I’m going straight to my lawyer". 

I told her that I was disappointed to hear that since she had no physical or psychological harm, and that additionally, I would most likely be named in any lawsuit as well. She then proceeded to tell me that I shouldn’t care. "That’s why you have insurance," she stated. After assuring that she was healthy, I turned to her as I exited the room and told her to "have a nice life".  

Sure enough, a few weeks later, I was served court papers. Amongst other grievances, I was accused of "insulting" her. Needless to say, the case was eventually dismissed, but not after lengthy hours taken away from patient care, replying to investigations, and attending depositions. 

When the case settled, I asked my attorney if I could actually pay a few hundred dollars to the plaintiff out of my own pocket in return for a half hour of her time. "Are you insane?" he asked. "Why would you do that?" I replied that I just wanted an opportunity to demonstrate for 30 minutes what an insult actually was.

I am frequently asked if I think that EMRs will have an effect on malpractice. In the situation described above, clearly not. There is no doubt, however, that improved documentation along with detailed access to patient data will be impactful. If we can figure out how to properly invoke clinical decision support, we can further mitigate risk. 

On the other hand, bad doctors will always find ways to exploit the EMR and use it for inappropriate short-cuts in both care and documentation. I have no doubt that there is a growing cottage industry of attorneys looking to exploit this technology in creative new ways to sue doctors. I shudder to think of what will certainly be a future accusation, "Just because you clicked an option that said ‘all normal’ does not mean that you actually performed a thorough exam." This is why I urge all physicians using an EMR to use extreme caution when documenting by exclusion.

Ending odd lawsuits is not something I can control, but improving the delivery of care to my patients is.

Joel Diamond, MD is chief medical officer at dbMotion, adjunct associate professor at the Department of Biomedical Informatics at the University of Pittsburgh, and a practicing physician at UPMC and of the Handelsman Family Practice in Pittsburgh, PA. He also blogs on interoperability.