A Proposed Evidentiary Privilege for Medical Checklists

Abstract

This Note discusses the recent studies that have concluded that medical checklists—checklists used by physicians to aid their treatment of patients—improve patients’ recovery time, the medical care providers ability to properly and quickly diagnose patients, and reduces costs dramatically. The Note extensively reviews the literature which clearly documents the pervasiveness of medical errors, and the efficacy (and error reductions) caused by checklists. The reason why such checklists are not used as often as they should be is due to fear that such documents could be introduced as evidence in a medical malpractice action, which is a weapon that physicians simply do not wish to provide for the plaintiff’s bar.

One possible way to ensure that patient’s will receive the benefit of checklists is via state regulation mandating the use of such checklists, but this solution is unlikely, as States have historically stayed far away from regulating physicians in the form of rules mandated a required method of treatment. This would also impede the ability of trained medical professionals to determine which form of checklist should be used under which circumstance, which is not something that the States should be doing.

The Note proposes a solution. The evidentiary rules found in the federal rules, as well as many State codes, often create privileges on the basis of some underlying policy consideration. For example, the rule barring the introduction of evidence of subsequent remedial measures in a civil trial, although clearly probative of liability, nonetheless is admissible, lest those who are sued will never make conditions more safe than they were at the time of the incident due to fears that such actions could be used against them in court.

The author proposes that an evidentiary privilege be created to bar the admission of such checklists in a medical malpractice action. This, she argues, would eliminate the fears of the physicians that the lists would be used against them, and would almost inevitably lead to their widespread use in the medical community. Moreover, such a privilege, the Note explains, would not unfairly disadvantage plaintiffs, as the evidence that they have historically used will still be available, and because the information (or lack thereof) which would be probative of the malpractice in court would not impede their ability to prove causation or liability.

Finally, the Note addresses various objections to the creation of an evidentiary privilege for checklists.  It responds to these criticisms and argues that state legislative requirements mandating use of particular checklists would deter exploration of the full range of potential innovative uses for checklists.  The author then concludes that establishing an evidentiary privilege for medical checklists is critical to reducing the frequency of preventable medical errors.