E-Discovery in Medical Malpractice Cases

John Fisher
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Stopping Medical Injustice

Electronic medical records (EMR) can be very important in medical malpractice cases.  How much in damages a hospital may have to pay a plaintiff can hinge on the documentation or the lack thereof within the EMRs.  

 

Deficient use of EMRs by medical professionals can result in huge penalties.  While EMRs can be used to improve care, when used improperly, they can result in significant financial liability.  In some cases, judges will dismiss EMRs because of how they were created or that they had been altered.  

 

It is important for doctors and health care organizations to be more careful in obtaining electronic signatures for informed consent, minimize the use of scanning, responsibly use cut-and-paste, avoid note bloat, use templates with care, and use autocomplete as little as possible.

 

EMRs have increased the ease with which physicians can document.  Paragraphs of information can be generated with just a checkmark or a few keystrokes.  Predesigned templates can describe a comprehensive examination in great detail.  However, all of this information can cause problems.  It can be easy to miss a positive finding among a string of negative findings.  This can be avoided by documenting the positive findings in a way that enables the reader to find them quickly.  The use of templates can also cause problems.  While they are helpful in documenting repetitive acts, inadvertently using the wrong template can lead to potential medical malpractice problems.

 

In some cases, the plaintiffs in a medical malpractice case will try to obtain more than just the EMRs.  Counsel in one medical malpractice case sought more e-discovery, in the hopes of being able to discover physician and hospital EMRs as well as their attendant electronic “audit trails.”  In the medical malpractice case Vargas v. Lee, which concerns post-surgical complications, there is an issue regarding the production of the “audit trail” of the hospital’s EMRs.  The plaintiff claimed that the “audit trail” would give information relating to the timing and substance of the post-surgical care the plaintiff received.  

 

However, the court held that the plaintiff failed to distinguish the utility of the audit trail from the EMR with which it corresponds because the plaintiff could obtain the treatment details from the EMRs, which had already been produced.  Since the plaintiff failed to satisfy his burden of establishing necessity and utility of producing the audit trail, the motion to compel was denied. 

 

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.

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