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Emergency Medicine News:
doi: 10.1097/01.EEM.0000340950.69012.8d
You've Been Served

The First Great Lie

Hossfeld, George MD

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Dr. Hossfeld is an assistant professor of emergency medicine at the University of Illinois-Chicago. He is a past president of the Illinois College of Emergency Physicians, and has been involved in the legal side of emergency medicine for more than 25 years.

Ah, the naiveté of youth! Didn't we all start with various versions of altruism? “I want to be a doctor. I want to help people.” Wish that it was only so straightforward.

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By the time we become doctors, our innocence has already been altered by bits of harsh experience. We surely have become jaded enough to know the folly of “the check is in the mail,” “I'll respect you in the morning,” and especially “I'm from the government, and I'm here to help you.”

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There are some other lies perpetuated on us in legal medicine that do heaps of harm and need to be exposed. These aren't just funny harmless little fibs either. They are part of a strategy to belittle us and win jury sympathy to the plaintiff.

It doesn't take long after one's initiation to the defendant's chair to find that the playing field is slanted against us. That should be no surprise, I guess. After all, laws are made by lawyers. So it should be no shock that laws benefit lawyers. (Isn't that why we so love to see a physician elected to office, as rare as that may be?)

There seems to be a whole playbook of rules and options that are not designed to ferret out the truth but to amplify the role of the attorneys while demeaning the role of the doctor. Most importantly, the ultimate goal is not truth, but getting the best deal for one's client. Ask Johnny Cochrane if he was interested in OJ's truth.

With both attorneys out to “represent their clients’ best interests,” it seems to be missed that one has dedicated one's career, and a good part of one's life to helping those very people seeking to ruin you. We're far from perfect, but good intentions should count for something. Rather, both sides seek to sway a jury toward their clients, regardless of the facts of the actual case being tried. In all honesty, defense attorneys worship at the same altar.

One of the tactics that plaintiff attorneys employ to bias a jury is to lead them to believe certain premises exist, that all doctors, hospitals, and insurance companies are wealthy. This leads us to The First Great Lie.

We have all heard the phrase, “If it wasn't charted, it didn't happen.” (My blood boils to even type the words.) While an admirable (but impossible) goal for our charting, it was never intended to be taken literally.

It's dishonest for lawyers to declare it. It's feeble when we accept it without protest. But it is really deplorable when it is echoed by our own troops! We need to stop our own teachers, colleagues, and lawyers from further propagating this fallacy. Our colleagues who repeat it are, without intended malice, actually giving credibility to the premise and inadvertently damaging our position. I'd venture that nearly all medical malpractice attorneys — plaintiff and defense — have used that phrase, and we've let them do it.

Think about it. Isn't it true that no matter how much one chronicles, no matter how compulsive one is, and no matter how much time and effort one puts into the medical record, there is always even more information that is not written down?

Anyone who has been around medical lawsuits for long has heard this declared to the jury as if it were a fact of life. Of course, no medical record and no medical recorder can meet this impossible standard. Unethical plaintiffs’ lawyers (some would say redundant in itself) have used it to supposedly prove that our care has been deficient. If we're not prepared for it when it appears, we can look weak and guilty. In no uncertain terms, we need to shout in unison, “We should not and will not take this crap!”

There's a retort that I have used to answer this phrase that I think is effective and worth sharing. I stop the speaker very pointedly, and say the following. “Excuse me, but did you say ‘If it isn't charted, it didn't happen?’ To think that any doctor can possibly record everything that is happening with a patient's care is akin to thinking that the court reporter present today can possibly record everything that each of us can see, smell, taste, feel, and hear in this courtroom. (Pause here) No, we are doctors caring for sick and injured patients, usually at least several and sometimes many at the same time. Our job is to take care of patients, not fill up sheets of paper with expansive writing. We are not scribes or clerical workers. In between caring for our patients, we do our best to record the events so that subsequent doctors and nurses can continue the fine care we have begun. We are not making excuses for our charts or lack of extensive writing, only explaining it.”

I've yet to hear, nor can I imagine, an effective reply.

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About You've Been Served

This column is dedicated to the thousands of committed physicians and other health care professionals, who despite their best efforts, devotion, and selfless lives committed to the best patient care, wound up in the defendant's chair on a malpractice suit. At best, I hope this column has an impact on litigation reform, abandoning the unrealistic, unattainable standard of care that has been set as perfection. At a minimum, I hope to serve as a sounding board for the countless professionals who have been subjected to personal attacks by the very patients we have vowed to help. — GH

© 2009 Lippincott Williams & Wilkins, Inc.

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