We suggest that these systems prevent litigation for three reasons. The first
is that they prevent the systems failures that result in prenatal care-related
injuries. The second is that they reduce the patient's incentive to sue. By
making her a partner in her care and by providing full information about
potential problems, the patient is less likely to be angry and surprised by
things that happen in her care. Third, they present an unambiguous record of
the care provided, the information given each woman, and the woman's choices
based on that information. In this regard, the patient education handouts are
as important as the record. Without the patient education component of the
system, structured records are less credible because they are easy to alter. If
the patient receives a handout, it helps prove the care was rendered. Perhaps
most important for the psychology of litigation, they present this information
in a well-organized, graphically attractive form. This is in stark contrast to
the illegible notes or stream of consciousness dictations that make up many
medical records. Physicians and their attorneys see so many medical records
that they do not appreciate that most laypersons assume that medical records
are an important measure of a physician's skills. A skillful plaintiff's
attorney can easily convince a juror that sloppy, incomplete medical records
equate to sloppy incomplete care.
The combination of extensive patient handouts and a complete and
well-structured record creates the impression that the physician was careful
and competent. This makes the case much less attractive to a plaintiff's
attorney whose strategy is to win on jury sympathy rather than on a showing of
clear and unambiguous negligence. Conversely, a highly structured record used
improperly is a litigation disaster. If the records are completed haphazardly
and the patients are not given the proper information, the record is no longer
self-auditing and will no longer prevent systems failures. Its elegant
structure turns against the physician, making the record the plaintiff's best
evidence of the physician's negligence. This has led some defense attorneys to
recommend against the use of structured records, based on the correct analysis
that physicians who do not use the system properly will be hard to defend. It
ignores the probability that most physicians will use the system properly and
thus not be sued.
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