The Legal Intelligencer
April 11, 2017
Medical malpractice cases need to be investigated like a medical examination; one that includes the taking of current complaints, a medical history, a physical examination and a differential diagnosis. Since the medical field is in flux, the attorney must appreciate that medicine is changing through technological innovation, instant communication and electronic health record implementation.
For the start of our legal examination, we must understand the current complaint: medical errors. Medical error is the third leading cause of death in the United States. Deaths from medical errors are almost eight times greater than deaths from firearms. This numeric does not even include catastrophic injuries or life-long debilitations. Errors occur despite significant technological advancements; such as: robotic surgery, drug interaction websites, journal article search engines, electronic health recording systems, uniform DICOM viewers, mobile access and remote surgeries. It seems that these advancements have led to a decrease in communication among medical providers, an increase in active cases assigned to busy practitioners and an over-reliance on technology to solve problems.
Taking a case’s history requires knowing the laws requiring electronic health records and their mandatory recording of events. When the Health Information Technology for Economic and Clinical Health Act (HITECH), within the larger American Recovery and Reinvestment Act of 2009 (ARRA), and the Patient Protection and Affordable Care Act (PPACA) were placed into effect, it led to the implementation of electronic health records (EHR) across the country. Further, medical software began to hold strict legal requirements. And their implementation was expedited. The HITECH Act set 2014 as the date when an electronic health records would be created for each person in the United States. That time has passed and the clear majority of medical practices have been transitioned to the new world of electronic documentation.