Medical Malpractice Bulletin – November, 2016

Perspective: The role of electronic records (EHR/EMR) in med mal lawsuits

By Charles A. Pilcher MD FACEP

Last year Dr. David Troxel of The Doctors Company published an analysis of the role that the Electronic Health Record (EHR) has played in closed medical malpractice claims. This report and an earlier one on the topic by Dr. Troxel are summarized here for med mal attorney readers whose cases often include questions about the validity of the electronically generated medical record. The problems with such records include both “system errors” and “user errors.” The importance of “metadata,” i.e., the electronic “audit trail” of the interactions of caregivers with the record, can often be an integral part of both the plaintiff and defense strategy. Continue reading ->

EHR’s in the ED: The view from Kaiser Health

Kaiser Health News posted the Kaiser perspective on EHR’s in the ED earlier this year. The article addresses such things as “one mouse click away from disaster,” “wrong patient” and other common errors possible with the use of the EHR. As its use becomes more embedded in the daily practices of physicians, errors become more common.

Do defense experts also stretch the truth?

An item in last month’s Med Mal Bulletin covered ACEP’s public censure of Dr. Peter Rosen for what was determined by an ACEP committee to be unethical testimony in support of a plaintiff. A reader of this newsletter asked, “Has ACEP ever censured a defense expert for unethical testimony?” He went on to say “There may be a few physicians who color their testimony for plaintiffs, but I am absolutely certain that it is much more common for defense experts to give false, misleading, and inaccurate testimony.  In fact, I have never had a case go to trial where this has not occurred in some form.” He provided a link to the story of Dr. Lars Aaning, a South Dakota surgeon who confessed to lying years ago to protect a colleague in a med mal trial. An inquiry to the Ethics Committee of ACEP confirmed that no emergency physician has ever even been investigated for questionable testimony on behalf of a defendant. Further comments on this topic are welcome.

Stroke treatment: Clot removal expanding treatment options

In the foreseeable future, and in some areas an already maturing approach, actual removal of the clot causing a thrombotic ischemic stroke is possible. The technology is one that is likely (for the foreseeable future) to be available only in selected and highly specialized stroke centers. This intervention will have a major impact on stroke treatment and stroke centers. For those interested in staying abreast of the latest in stroke treatments, here are links to three recent articles:

Imaging of spinal epidural abscesses

The University of Maryland School of Medicine publishes “pearls” from the EM literature several times a week. A recent post on spinal imaging, based on an article by Singh et al., caught my eye. It’s a reminder that MRI is the best option for any suspected spinal cord disorder and that imaging the entire spine is often necessary if spinal epidural abscess is a possibility.

Body cavity search warrants: Are they enforceable

Earlier this year I shared an article on “body cavity search warrants” I researched and co-authored with Dr. Erika Schroeder. I was honored to have that article published in the October issue of ACEPNow, the monthly newsletter of the American College of Emergency Physicians. If you missed it, you can read it in ACEPNow. Spoiler alert: Body cavity search warrants presented to a physician are not enforceable.

Guest commentator: Risk Management Monthly

I was also invited to be a guest commentator on Risk Management Monthly, a newsletter and podcast featuring Rick Bukata MD and Greg Henry MD JD. Doctors Bukata and Henry are two of the most respected names in emergency medicine and have been producing Risk Management Monthly for several years. During the session – recorded the last week of October for the November issue – we covered several of the most common errors that lead to med mal lawsuits and illustrated them with cases from my 35 year career as an expert. It was truly an honor to be part of their production, since the three of us share a common goal of improving patient safety and reducing the incidence of medical malpractice.

Non-disclosure clauses: The pros and cons

I still need an attorney to represent the defense perspective for a panel discussion on the ethics of non-disclosure clauses at the national conference of the American Association of Legal Nurse Consultants in Portland, Saturday, April 8. An RN JD would be ideal, or even an RN consultant working with a defense firm. I will be the moderator. Other panelists include a representative from a nursing malpractice insurance company, an AALNC member and a plaintiff attorney.


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