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Friendly Legal Chat: EMRs May Create A Plethora Of New Ways For Physicians To Be Sued

I spent the entire last weekend with an attorney, not a desirable circumstance for most physicians. However, I wasn’t being deposed or interrogated on cross examination. This was a rendezvous that we both sought with enthusiasm.

Lewis is my closest friend, a bond that was forged since we were eight years old. We are separated now only by geography, and we meet periodically because we both treasure the friendship. Earlier this year we rolled the dice in Vegas. Last weekend, we sweated in the sweltering heat of the Mile High City. Next stop? Back to Denver with a few youngins’!

Lewis is the managing partner in a prominent west coast law firm that specializes in tax evasion. (Or is it tax avoidance? Am I confusing my terms here, Lew?) He has been redrafted to this position because he has earned the respect of his colleagues. Clearly, both Lewis and I have ascended to the highest strata of our professions. Lewis is in charge of a large law firm that has global reach; he travels all over the world cultivating business and negotiating deals; and he navigates clients through complex and labyrinthine legal conundrums. I, an esteemed community gastroenterologist, perform daily rectal examinations and counsel patients on flatulence.

I am sure that readers will agree that our future professional prestige is already evident in this photo of us taken several decades ago.
Lewis and me a few years ago
Among the many ponderous issues that we discussed, were the current state of each other’s profession. I enlightened Lewis that electronic medical records (EMR) has not yet fulfilled its promise of ease of use and integration with other medical offices and institutions. I shared my disapproval of ‘point & click’ medicine, which is the default mode of many EMR systems. I also opined that EMR has created many viable avenues for medical malpractice attorneys to pursue. For example, is it now the community standard for physicians with EMRs to search surrounding medical databases during an office visit to gather results of all prior laboratory and radiology records from area hospitals if it is technically possible to do so? If a patient sees me to discuss the heartbreak of hemorrhoids, am I negligent if I do not perform a wide data search and discover that an ultrasound of the liver done 2 years ago for other reasons showed a small lesion that in 3 months would become a serious clinical issue?  Am I now responsbible for every lab and x-ray result that is within cyber reach?  Sure EMRs can save the doctor, but it can sink him also.

Lewis shared his views on the state of our economy, the current tax structure and the fairness and efficiency of our legal system. His colorful descriptions of these and other issues cannot be reproduced here verbatim as this is a family blog. Using softer language and paraphrasing, he did not exude optimism for America’s future.

He related some of his interesting legal matters, and I shared anecdotes from my gastroenterology practice. This created an interesting philosophical question. Consider the following 2 inquiries.

If a tree falls in the woods, and no one hears it, has noise occurred?


If a doctor mentions a patient and his diagnosis, and no one hears it, has HIPPA been violated?

Luckily, I always travel with my HCH, a HIPPA Compliant Helmet, a device that resembles a CPAP apparatus that sleep apnea patients wear at night. Once fitted with the device, any patient’s name I utter becomes encrypted and emerges from my mouth as a Disney character.

If I Say… You Will Hear…

Joe Bellamy                                     Goofy

Susan Sherman                                Dopey

Karen Carmichael                            Dumbo

My HIPPA helmet this past weekend was strapped in tightly, even during sleep in the event I somnambulated and started murmuring privileged patient information. Sure, Lewis is my best friend. But, he is also a lawyer and he might have been wearing a wire. After all, business is business.

We actually discovered common elements in our jobs.

  • We can’t guarantee the outcome to those we counsel.
  • We are routinely blamed for adverse outcomes that are not our fault.
  • Both of our professions are screaming for reform, but politics won’t permit it to happen.

We didn’t solve all of the world’s problems, but many of the intractable issues we did discuss seemed like they could be solved if 10 reasonable folks around a table could hash it out without political interference.

Real friendship matters. A lawyer and a physician are an ideal combination, as odd as this sounds. Sometimes the relationship may need the skills of a negotiator, and other times it may need some healing. If you are really lucky, as we are, the friendship just coasts on naturally, powered by the strength of a bond that in a few years will reach a half century mark.


Lewis and me today

*This blog post was originally published at MD Whistleblower*


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2 Responses to “Friendly Legal Chat: EMRs May Create A Plethora Of New Ways For Physicians To Be Sued”

  1. Elizabeth says:

    There are many problems with EMR! As a legal nurse consultant, I review many records for attorneys. I’d rather deal with a handwritten record than with EMRs. The organization is bizarre, there is repetition ad nauseum, the printouts are in ant-sized fonts, and trying to find a particular event / page is next to impossible – even knowing the date and time.
    I’ve dealt with several hundred records from different EMR-software products. Unfortunately, they all have similar problems: lack of standard organization, repetition, small print.
    The ideal EMR would base it’s organization on CRICO/RMF Medical Record Organization Standards and recommendations [http://www.rmf.harvard.edu/patient-safety-strategies/documentation/medical-records/medical-record-organization.aspx?id=1&cat_id=1c]. While some MDs I’ve talked to have said such a system would “make it easier for lawyer’s to sue us,” I point out to them that if they practice in a way to minimize error, establish a good relationship with their patients, and document everything they do, say or even think about a case, they would minimize their liability. Another thing is that by making it more time-consuming for whoever is analyzing the records only increases the expenses of the attorney – which s/he will then pass on to the costs of the case.
    The best records I ever reviewed involved well-dictated notes of each visit utilizing SOAP format, and a record organized in ascending date order. Earlier labs were not duplicated at each visit. Overall organization was according to the standard protocol of hospital medical record departments. We found no breach of the standards of care for this physician, and we figured that out rather rapidly.
    So that’s my view of medical records and legal stuff.
    Have a happy day!

  2. Michael Kirsch says:

    Thanks for your comment. You wrote, “and document everything they do, say or even think about a case, they would minimize their liability.”. This is a rather high bar for physicians to reach.

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