Law Office of Robert A. Miller
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Gag orders may prevent doctors from disclosing EHR errors

Human beings have an inherent urge to apologize when they make a mistake, but plaintiffs in medical malpractice cases often find that doctors can be adept at resisting these impulses. While Oregon law prevents apologies made by physicians being used to establish liability in such litigation, confidentiality agreements signed by doctors may prevent them from disclosing mistakes caused by errors in electronic health records or problems with the technology used to compile and manage these records.

The Institute of Medicine looked into medical mistakes related to information technology in 2011, but the nonprofit organization's efforts were made challenging by a lack of comprehensive data. The sanctions associated with the regulatory measures implemented to reduce this type of medical error have been criticized for not providing a sufficient deterrent, and calls for the mandatory reporting of hospital IT errors have gone unheeded.

Attorneys representing a Connecticut woman who sued a New Haven hospital after surgeons made a mistake in 2014 say that their client received no apology and was lied to by the surgeon involved. The woman and her attorneys say that they only became aware of what may have really transpired when the contents of a report filed by the hospital with state health officials were disclosed in March 2016. The report revealed that problems with sophisticated imaging technology could have been a contributing factor.

Attorneys with experience in this area will likely have encountered doctors who deny that their negligence contributed to a worsened condition and claim that the care they provided met accepted medical standards. Attorneys may challenge these assertions by seeking out any communications relating to the incident and calling upon medical experts to provide juries with a better understanding of how errors may have been made.

Source: Oregon Laws, 677.082 "Expression of regret or apology", accessed on March 25, 2016

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