Advances in cancer medicine need to be accompanied by good preventive medico-legal practice in order to avoid the costly negligence lawsuit. What are the best ways to combine good medical practice with good medico‑legal and legal practice in an era of 21st century cancer medicine? The importance of good record keeping and good follow-up has not changed, according to Janice Mulligan, Esq., an attorney in private practice in San Diego, but with the widespread adoption of the electronic health record (EHR) now being promoted by federal legislation Health Information Technology for Economic and Clinical Health (HITECH) Act, the new technologies, in spite of the advantages, especially over the long term, come with definite drawbacks and pitfalls. The HITECH Act invests approximately $20 billion in health information technology infrastructure and Medicare and Medicaid incentives. Physicians are eligible for $40,000 to $65,000 each when they incorporate the electronic technologies into their practices; health centers and hospitals also are eligible for incentives.8

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“The EHR may give a false sense of security,” indicates Mulligan, and the ease of electronic record keeping can cause legal problems. “Vigilance is necessary, and care must be taken to avoid overuse of check-off systems which can lead to, for example, multiple entries of the same vital signs at seven different times. In addition, a medical practice (including oncology practices) or hospital oncology team members may cause legal problems by late entries, made with good intentions, but not specifically coded as late entries. The opposing legal team can obtain the assistance of a computer expert and allege that these were not made at the actual time represented, even if the problem was merely lack of time and exhaustion at the end of the day.”

Another typical trigger for litigation is failure to act or follow-up on a symptom, sign, radiology finding, or abnormal laboratory test result. When the medical staff works in a respectful environment in which positive team interactions are encouraged in spite of cost and budget constraints, the overall result is improvement in healthcare with a manageable price tag. Oncology physicians and their teams also need to be mindful of furnishing negative comments about a colleague’s care. When a proposed malpractice case turns into a fishing expedition, both physicians and their teams are likely to be swept into the litigation net.5 

The oncologist and oncology team also have to be cautious of admitting to an error that occurred. As of 2007, “I’m Sorry” laws were on the books in at least 29 states. The laws are based on the Federal Rules of Evidence and similar state statutes, where saying “I’m sorry” cannot be used against you to prove liability in a court of law. This is a big change from a system in which an apology could be viewed by judge and court as an admission of guilt and proof of liability.5,9