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Thinking Like a Plaintiff's Attorney

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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