An internet television program that explores the intersection of medicine and the law.

How EMR Systems Could be Improved in Regard to Medical Liability Claim Defense

By Tad Devlin to EMR/EHR


In this episode, Healthcare Matters interviews ALL MD attorney Tad Devlin on how he would consult an electronic medical record company on improving its product in regard medical liability claim defense.

Devlin is a partner at KAUFMAN, DOLOWICH, VOLUCK. He practices law in California, focusing his practice in the areas of commercial and insurance litigation, ERISA/life, health and disability benefit disputes, profit sharing plan and employee stock plan disputes, real estate, financial services disputes, professional liability (lawyers, doctors, accountants, real estate, insurance agents, architects and engineers), disciplinary defense and white collar defense.

Devlin is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.

Question 2 of 4

Interview recorded June 17, 2015


Mike Matray: Hi, I’m Mike Matray and I’m the host of Healthcare Matters, where the legal and medical fields come together to discuss healthcare matters. Today’s guest is Tad Devlin. He’s partner at Kaufman Dolowich Voluck, Welcome to Healthcare Matter, Tad.

Tad Devlin: Thanks Mike, pleasure to be here with you.

Mike: A recent RAMCORP American Medical Society study called for a complete design overhaul of electronic medical records to improve their usability. If you had the opportunity to advise any MR vendor, how would you recommend that they redesign the products? What changes would most benefit the defensibility of a malpractice claim?

Tad: I wish that they talked with the lawyers on the front end rather than on the back end and we’ve done that in the past, where we give nationwide training out to ensure accuracy, privacy, timely reporting and security. I think some of the important flashpoints for practitioners and treaters to keep in my mind are log on log off periods, ensuring that you have a proper electronic chain of custody that folks are taking the time to accurately write down into the data entry system what they intend to say.

A lot of times, I have found in my personal life and in professional experience, it’s much easier to use short hand and abbreviations with texting and typing with a keyboard, if you will, or even dictation than it were to be in the old days, if you only actually get out a piece of paper and a pen and you may take multiple drafts on a letter or correspondence or a medical entry. There’s something more connected between your brain and your hand, I have found in dealing with claims, than there is behind a brain and a keyboard. So, I think it’s important to review what you’ve written, to make sure that you have a double submission entry point. It’s like another confirmation. Say you draft up your note, you click submit, you get an opportunity to review it, you’ve got a box that says, “Did you review and do you agree to the accuracy and certainty?” And then you confirm it. So, there are additional safeguards before a log entry gets made.

The reason I say that is because, often times, it’s the one vague or ambiguous entry that didn’t necessarily capture what the doctor meant that the opposing side will seize upon to try to create liability or uncertainty where none exists. It’s much easier for that to be contained by an accurate record as opposed to a speaking doctor who is in a deposition, or in a regulatory setting, or even trial saying, “That’s not exactly what I meant, what I meant was…” There’s an adage in the law that witnesses talk, documents walk. So, like the picture can be a thousand words, those medical records and those medical file entry points are oftentimes held up before a fact finder who is called to interpret them, and an explanation from a doctor may not move the needle, no pun intended.