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To avoid malpractice claims resulting from a patient’s failure to follow up with recommended care, physicians should use electronic medical records (EMRs) to document their follow-up efforts, advises Sharona Hoffman, JD, LLM, co-director of the Law-Medicine Center at Case Western Reserve University School of Law in Cleveland, OH.
"The EMR will show when the doctor received the test result and when the patient had a next appointment," says Hoffman. In addition, doctors will order further tests and procedures through the EMR, so those tests and procedures will be reflected in the record.
The time and contents of any follow-up phone conversation with patients also should be documented, says Hoffman. "Doctors should be very specific in their notes about what they told patients to do and whether they referred them to other specialists for care," she adds.
Emails between the physician and patient also will be retrievable and could serve as important evidence in litigation, says Hoffman.
A patient’s failure to follow the physician’s recommendations should be a strong defense in malpractice litigation, according to Hoffman. "As long as the instructions and test orders are clearly documented, and the patient understood what she was to do and chose not to do it, she will not have a strong malpractice claim," she says.
Patrick A. Malone, JD, a Washington, DC-based attorney, says, "I have long advocated that physicians can show respect for patients’ intelligence, and also protect themselves, by simply routinely sending copies of all test results to the patient."
Malone recommends that physicians forward all test results, along with a cover note to call the physician’s office to set up a time to discuss the test results. "EMRs should make this easier to do, since the patient is only an email away," he says.
Then in the event of a missed followup, the patient will not be able to say "if I’d only been told." "But the even better result will be far fewer instances of followups falling through the cracks," says Malone. "Patients who are notified of abnormal test results will want to get to the bottom of them."