Public Health Law Map - Beta 5 - Medical and Public Health Law Site

1. Are high-risk or difficult births excluded from the system? This does not appear to
be the case. Physicians who use the system generally use it for all deliveries.
2. Is there a bias in the selection of physicians using the system? This raises an
intriguing question. If it is not the prenatal care system that protects these physicians
from litigation, then what other physician characteristics correlate with an extremely
low rate of birth injury claims? (Experience with communities where all the
physicians use the system seem to mitigate physician selection as the sole basis for
the system’s effectiveness.)
3. Thinking Like a Plaintiff’s Attorney
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.
D. The Birth Plan
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