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    Moving to EMR and destroying written records: I just got sued

    David J. Goldberg, M.D. J.D.Dr. Paper has practiced dermatology for 20 years. Last year, he finally began to implement an EMR system and his staff began to destroy the thousands of paper charts from the last two decades. Unfortunately, his staff shredded multiple records that had not yet been scanned into his new EMR system. Recently, several of his patients requested copies of their records—records that had already been destroyed. One such patient has now threatened to sue Dr. Paper for negligence. He saw the patient only one year ago.  Does he have any liability?

    READ: When can I accept a patient's gift?

    There are several issues to look at in this regard. One issue is the standard medical malpractice issue that is based on negligence. The analysis of negligence is always based on four distinct elements:

    1. Duty
    2. Breach of duty
    3. Causation
    4. Damages

    Attorneys, expert witness and juries will always ask the same question: In his actions toward his patient, did Dr. Paper perform in accordance with reasonable duty? In most jurisdictions the standard question is: Did he perform his duty like any other reasonable physician? In some jurisdictions, the question is asked somewhat differently: Did the physician perform in a manner that would be expected by a reasonable patient? If Dr. Paper did not do so, he then has breached his duty.

    However, breaching his duty will not necessarily cause him to lose a lawsuit (it may, however, be the precipitating factor in the lawsuit being filed). For Dr. Paper to lose the lawsuit, there must be a connection between the breach of duty and damages. That element is known as causation. That is, was the breach the actual cause of the damages?

    NEXT: Damages must have an economic value

    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...


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