Electronic Medical Records & Litigation

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1 Electronic Medical Records & Litigation Victor R. Cotton MD, JD President Law & Medicine Hershey, PA Procedures Delays in Diagnosis January 29 February 1,

2 Procedures Procedures Violation of Informed Consent Improper Performance of Procedure 40 P.S A (Act 135 of 1997) January 29 February 1,

3 Surgical Procedures Radiation or Chemotherapy Blood Transfusion Inserting a Surgical Device or Appliance Experimental Treatment Informed Consent Nature of the Procedure Proposed Benefits Material Risks Alternatives Informed Consent Nature of the Procedure Proposed Benefits Material Risks Alternatives January 29 February 1,

4 Do not Over-promise Benefit Informed Consent Nature of the Procedure Proposed Benefits Material Risks Alternatives Bleeding Infection Worsen the Situation Injure Another Structure Anesthesia Death January 29 February 1,

5 Is the consent valid if the patient develops a risk that I didn t discuss? Informed Consent Nature of the Procedure Proposed Benefits Material Risks Alternatives Continue Present Care January 29 February 1,

6 Informed Consent Nature of the Procedure Proposed Benefits Material Risks Alternatives Written or Verbal? Witness Patient Understanding Emergency Templates Procedures Violation of Informed Consent Improper Performance of Procedure January 29 February 1,

7 Procedure Note A textbook procedure is never malpractice. The EMR sometimes forces me to use a template that doesn t fit the procedure. The EMR generates procedure notes that are virtually identical to one another. January 29 February 1,

8 Procedure Note A textbook procedure is never malpractice. What if a complication arises? What if I did something improper? Procedures Delays in Diagnosis Delays in Diagnosis January 29 February 1,

9 Delays in Diagnosis Inadequate H & P Failure to Complete a Necessary Test Thorough H & P Everything Relevant (not everything ) No Loose Ends No Other (New) Complaints Delays in Diagnosis Inadequate H & P Failure to Complete a Necessary Test January 29 February 1,

10 Failure to Complete a Necessary Test Patient declines/refuses the test Lung nodule, possible cancer. Patient declines any evaluation. Risks of doing so discussed Failure to Complete a Necessary Test Patient declines/refuses the test Insurer will not pay for test January 29 February 1,

11 Lung nodule, possible cancer. Needs CT Insurer will not cover. Pt cannot afford. Will. Failure to Complete a Necessary Test Patient declines/refuses the test Insurer will not pay for test Patient does not go for the test Lung nodule, possible cancer. Will get CT Diagnostic plan discussed with patient January 29 February 1,

12 Failure to Complete a Necessary Test Patient declines/refuses the test Insurer will not pay for test Patient does not go for the test Interpretation Interpretation Timely and Accurate Report Unexpected Findings Suggest Additional Testing Procedures Delays in Diagnosis January 29 February 1,

13 EMR Concerns Cut & Paste Typos Discovery of Meta-data Identical Notes Documentation Concerns After a Lawsuit is Filed Accessing the EMR Correcting/Clarifying the Record Documentation About the Lawsuit January 29 February 1,

14 Confidential Attorney Client Privilege Dear Attorney Smith: Procedures Delays in Diagnosis January 29 February 1,

Electronic Medical Records & Litigation

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