Jeffrey Segal, MD, JD

by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

There is a lot of good that comes from EHR.

Electronic records allow an unprecedented capacity for continuity of care. Tele-medicine permits consults not just across the country but across the world. Just not having to physically transcribe notes saves time. E-prescribing eliminates calls from pharmacies unable to decipher handwriting. Legibility itself prevents many lawsuits.

In fact, as revealed in a 2008 study in the Archives of Internal Medicine, malpractice payouts correlate inversely with EHR use. The authors cited improved follow-up and legibility among the factors that not only reduced adverse outcomes but also made physicians more defensible if they were sued.

On the other hand, EHR carries new risks as the flip side to every advantageous coin.

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by “Dr. J.D.” – a physician and plaintiff’s attorney, practicing in the Northeast

The point at which the physician-patient relationship forms is fundamental to all medicolegal liability.

It is the point at which the physician’s duties to treat the patient according to the standard of care, to obtain informed consent and to provide continuity of care all attach.

It is therefore also the point at which liability for medical negligence, medical battery, and abandonment can also attach.

“When is a patient my patient?” is therefore a critical question.

It has a deceptively simple answer: The physician-patient relationship begins when the physician accepts, agrees to accept, or undertakes to render care to the patient.

Of course, in real life the points at which those events have actually taken place are often not clear-cut at all.

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A buck doesn’t buy a lot anymore. Take a look at some of the verdicts below.

I am not commenting on whether or not there was negligence. Assume for the moment doctors were negligent in each case. The damages are astounding. Remember that most doctors have $1M in liability coverage.

Of course, if the doctor asks the carrier to settle for policy limits and the carrier wants to take the case to trial, the carrier is gambling with its own money. But, if the carrier wants to settle, and you want to roll the dice, the carrier can write the check for $1M and you’re on the hook for the rest if you lose big.

The recent trend has been for higher jury verdicts. Sobering indeed.

$120 million
Martin v. NYCHH et al.
May 2012
Jacqueline Martin, who had a rare skin disorder, was brain damaged after physicians at three New York hospitals allegedly failed to diagnosis the condition. Her family won the verdict against the three medical centers and a neurologist.

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by Dr. J.D.

Abandonment occurs when a doctor cuts off the physician-patient relationship while the patient still actively needs care, and does so without adequate notice to allow the patient to get care elsewhere.

It can be the basis for a complaint to the state medical board and, if the patient can prove that he or she suffered an injury as a result, it can be the basis of a medical malpractice claim.

The proper discharge of a patient is really the rolling back of each step that formed the doctor-patient relationship:

– The patient came to you in need of care. They can only be terminated when they are not actively in need of care.

– The patient sought care with you rather than elsewhere. They can only be terminated by giving them time to find care elsewhere.

– Your conduct allowed the patient to reasonably believe that you were their doctor. They can only be terminated by you laying out clear statements that make such a belief unreasonable.

The separation does not have to be mutual – in fact, it can be entirely unilateral on your part even if the patient objects strongly – but it has to reflect the fact that medical care is a unique type of interaction because it can literally be a matter of life and death.

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