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In a decision that could influence discovery in federal medical-device products liability litigation, a Magistrate Judge in the U.S. District Court for the Northern District of New York has held that a state-law provision designed to encourage hospitals to maintain quality assurance and infection control programs without fear of litigation can be invoked to block disclosure of hospital records even where there is, at most, an indirect threat of a malpractice suit and where the…
It is said that 'doctors bury their mistakes.' At one time that may have been more true than in modern times, and when the original peer-review privileges case came out, it seemed as if it may have been more possible to bury culpable behavior in peer-review. That is not the case in 2007.
The author, Tim O'Brien, was appointed Lead Counsel by the U.S. District Court for the Southern District of New York in MDL No. 1789, <i>In re Fosomax Products Liability Litigation</i>. The opinions expressed herein are Mr. O'Brien's and represent some of the arguments the plaintiffs are or will be making in the litigation.
Documentation is an important part of medical care. Consultation notes, test results, physician orders and nursing observations all assist in ensuring continuity of care. In litigation, however, the significance of the written chart is often elevated from a tool for patient care to historical written account of past events. In this latter context, many in the medical community have advocated that if an event (an order, a consultation, a phone call, etc.) was not documented in the official patient record, it did not happen. Over time, this 'negative evidence' has been used to prove negligent omissions on the part of various care providers by showing that they failed to do something that they should have done, because if it had been done it would have been charted. The same 'lack of entry' evidence is also used to disprove (or create doubt) that an event testified to by a witness on the stand did not occur.
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