Can a Doctor's Smartphone App Thwart Lawsuits?

Patient: You never told me.
Physician: Yes, I did.
Patient: No, you didn't.
Physician: Yes, I did.

These are the basic elements of patient-physician miscommunication. What was said, what wasn't, and by whom? The upshot could have little impact on the medical outcome, or it could be a matter of life and death. Legally, the rudiments of this conversation could determine whether a physician becomes a defendant in a malpractice suit.

Last month, a classic case of such miscommunication emerged in a Colorado courtroom, when a woman who apparently had a seizure while driving her SUV entered an intersection, went airborne, smashed into two other cars, and killed five. Prosecutors claimed the driver ignored medical advice to not operate a vehicle. She claims she never got such advice. The woman was eventually cleared of negligent homicide. It is uncertain if she will file civil claims.

Michael Nusbaum, MD, chief of bariatric surgery at Morristown (NJ) Medical Center and president of the New Jersey Chapter of the American Society for Metabolic and Bariatric Surgery, brought up the case recently in a conversation with me about the nature of who-said-what in physician and patient discussions, and the potential legal impact of these conversations. Nusbaum noted that his physician practice was involved in litigation in New Jersey several years ago over questions about what was said to a patient who ultimately died. The patient's family filed suit.

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