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.

Though it didn't make national headlines, the case affected him deeply. As he pondered the litigation (which I'll get to in a bit,) he felt he had two options moving ahead:

He could:

1. Keep practicing defensive medicine, or
2. Develop a cell phone app to legally record conversations with patients so he didn't have to practice defensive medicine.

He chose option 2.

Nusbaum began his journey toward developing the app out of tragedy and legal headaches stemming from the New Jersey case.

According to Nusbaum, his practice was sued by a woman who said the physicians were at least partially responsible for the death of her husband, who was stricken with a cardiac ailment. The situation unfolded when the woman called the physician's office and asked if she should bring her husband, who was feeling ill, to the emergency department. Nusbaum's partner told her to go to the ED. The woman didn't take her husband, and the man died from a pulmonary embolism, Nusbaum says.

Later, the woman contended she wasn't told by the physician how important it was to go to the ED, according to Nusbaum. Nusbaum's partner was targeted in the civil suit, and later Nusbaum says he was named as a co-defendant, even though Nusbaum recalls the plaintiff telling him, "We love you, Dr. Nusbaum!"

Shaken by the experience, Nusbaum and his partner parted ways, which bothers him to this day. "We were best friends, but the lawsuit created a lot of tension," he explains ruefully.

Being a target of litigation can push a physician into overdrive in the practice of defensive medicine. "We all practice defensive medicine," Nusbaum says of physicians. "Everybody does it. You have to. How many times I think, 'Look, in all honesty, you don't have to go to the emergency room, but God forbid you would sue me, and I can't diagnose over the phone, so I have to tell you to go to the emergency room.'"

Nusbaum didn't want to keep practicing defensive medicine. And his frustration over the impact of the court case prompted him to develop a mobile app that includes the framework for a legally valid recording of a phone conversation between a patient and a doctor.

The app, known as MedXCom, is designed to record conversations and have them transcribed under a secured portal with HIPAA approvalIn addition, the "patient's whole medical history would be pushed into the smartphone, "Nusbaum says. The app is designated for physicians, but one is scheduled soon for patients as well, he adds. Users are prompted that the calls are being recorded.

"Having a recording of the phone conversations helps make the doctor and patient more accountable," he says. "We are trying to protect both ends, the patient and the doctor. It protects the patients by giving the doctor more and better information to make a good decision. On the doctor's end, there's protection. He can say, 'Look, I told the patient to go to the emergency department and he didn't go.'"

In addition, if a physician fails to give a patient important information, the recording could confirm that, Nusbaum says. "If the doctor didn't do [what he was supposed to do], the recording is there. Then you need to settle the case."

On its website, MedXCom is billed as an upgrade to current communications methods, but one of its main purposes is to derail potential litigation, Nusbaum says. "There's so much spent on defensive medicine; it's so much [a part] of healthcare costs. Anything to improve communication will make a difference."