the importance of documentation: the medical and legal issues samer kanaan, m.d

The Importance of The Importance of Documentation:Documentation:

The Medical and Legal IssuesThe Medical and Legal Issues

Samer Kanaan, M.D.Samer Kanaan, M.D.

GoalsGoals Review the Review the Importance of Medical DocumentationImportance of Medical Documentation

Discuss the Discuss the Improved SOAP note Improved SOAP note and how its and how its documentation can reduce malpractice riskdocumentation can reduce malpractice risk

Do’s and Don’ts Do’s and Don’ts of Documentationof Documentation

Review Review 5 High Risk Diagnoses 5 High Risk Diagnoses for Malpracticefor Malpractice

How Documentation affects How Documentation affects BillingsBillings

Review Review Specific Cases Specific Cases of Poor Documentation and of Poor Documentation and their Legal Implicationstheir Legal Implications

DisclaimerDisclaimer

I have I have NONO personal financial relationship with personal financial relationship with any manufacturer of products or services that any manufacturer of products or services that will be discussed in this lecture.will be discussed in this lecture.

““Excellence in medical Excellence in medical documentation reflects and creates documentation reflects and creates

excellence in medical care.”excellence in medical care.”

Teichman, PG; Documentation Tips for Reducing Malpractice Risk, 2000 American Academy of Family Physicians.Teichman, PG; Documentation Tips for Reducing Malpractice Risk, 2000 American Academy of Family Physicians.

Importance of Medical Importance of Medical DocumentationDocumentation

Function of Medical DocumentationFunction of Medical Documentation Provides all the information about a specific patient that any doctor looking at Provides all the information about a specific patient that any doctor looking at

the record would need to know to treat that patient.the record would need to know to treat that patient.

Significance of Medical DocumentationSignificance of Medical Documentation Essential for standards of care to be met.Essential for standards of care to be met.

Medical Billing and CodingMedical Billing and Coding Standards of Care Standards of Care

Neglecting to document important details can lead to adverse patient Neglecting to document important details can lead to adverse patient outcomes and malpractice suits. Documentation is legal protection for both outcomes and malpractice suits. Documentation is legal protection for both patient and physician in the event of disagreement over care.patient and physician in the event of disagreement over care.

EthicsEthics Adequate medical documentation assures patient confidentiality and ensures Adequate medical documentation assures patient confidentiality and ensures

that standards of care are met. Failure to treat illnesses to the best of a that standards of care are met. Failure to treat illnesses to the best of a physician’s ability based on the documented patient’s medical record physician’s ability based on the documented patient’s medical record compromises medical ethics and professional conduct.compromises medical ethics and professional conduct.

Improved SOAP noteImproved SOAP note

““At its best, the medical record forms a clear and complete plan that At its best, the medical record forms a clear and complete plan that legibly communicates pertinent information, credits competent care legibly communicates pertinent information, credits competent care and forms a tight defense against allegations of malpractice by and forms a tight defense against allegations of malpractice by aligning patient and provider expectations.”aligning patient and provider expectations.”

OLDOLD:: SOAP (Subjective, Objective, Assessment, Plan)SOAP (Subjective, Objective, Assessment, Plan)

NEWNEW::

S O O O A AP S O O O A AP

(Subjective, Objective, Opinion, Options, Advice, Agreed Plan)(Subjective, Objective, Opinion, Options, Advice, Agreed Plan)

Teichman, PG; Documentation Tips for Reducing Malpractice Risk, 2000 American Academy of Family Physicians.Teichman, PG; Documentation Tips for Reducing Malpractice Risk, 2000 American Academy of Family Physicians.

S O O O A APS O O O A AP SubjectiveSubjective, , ObjectiveObjective, , OpinionOpinion, , OptionsOptions, , AdviceAdvice, , Agreed PlanAgreed Plan

SubjectiveSubjective::

Use direct patient quotesUse direct patient quotes Demonstrates your attention to patientsDemonstrates your attention to patients Highlights main areas of concernHighlights main areas of concern Builds credibility into the recordBuilds credibility into the record Accurately documents a patient’s competency, affect, and attitude.Accurately documents a patient’s competency, affect, and attitude. FOR EXAMPLEFOR EXAMPLE:: “ I’ve been to 20 doctors and no one can help me.”“ I’ve been to 20 doctors and no one can help me.”

Complete Review of Systems with an inquiryComplete Review of Systems with an inquiry FOR EXAMPLEFOR EXAMPLE:: “Do you have any other concerns?”“Do you have any other concerns?” Documenting all concerns addressed demonstrates your thoroughness in obtaining Documenting all concerns addressed demonstrates your thoroughness in obtaining

the patient’s history, andthe patient’s history, and Avoids later charges that the patient brought an important symptom to your attention Avoids later charges that the patient brought an important symptom to your attention

that you ignored or neglected.that you ignored or neglected.


ObjectiveObjective:: Provides a list of measurable, reproducible data:Provides a list of measurable, reproducible data: Vitals, Labs, Imaging Vitals, Labs, Imaging

Perform sensitive exams (breast or genital) with a qualified assistant presentPerform sensitive exams (breast or genital) with a qualified assistant present:: Document such: Document such: FOR EXAMPLEFOR EXAMPLE:: “Chaperoned exam of ...”“Chaperoned exam of ...”

Avoid judgmental or potentially anger provoking descriptors:Avoid judgmental or potentially anger provoking descriptors: FOR EXAMPLEFOR EXAMPLE: : Replace Replace “Needs a bath” “Needs a bath” with with “Hair oily. Scent of body sweat present.”“Hair oily. Scent of body sweat present.”

Include descriptors that lend insight but exclude your interpretation:Include descriptors that lend insight but exclude your interpretation: FOR EXAMPLEFOR EXAMPLE: : “Two inch black swastika tattoo present on left biceps.”“Two inch black swastika tattoo present on left biceps.”

Avoid embarrassing or easily misunderstood descriptors:Avoid embarrassing or easily misunderstood descriptors: FOR EXAMPLEFOR EXAMPLE:: SOBSOB may be misinterpreted, and the patient may respond to such may be misinterpreted, and the patient may respond to such

a label with anger. Remember, the a label with anger. Remember, the medical record belongs to the patientmedical record belongs to the patient!!


OpinionOpinion:: Communicate the limitations of medical diagnosisCommunicate the limitations of medical diagnosis Should preclude absolutismShould preclude absolutism Strive to provide an impressive record of your comprehensive careStrive to provide an impressive record of your comprehensive care Avoid false certainties in diagnosesAvoid false certainties in diagnoses

Reduce burden of unmet expectationsReduce burden of unmet expectations Document your thought process and differential diagnosisDocument your thought process and differential diagnosis

FOR EXAMPLEFOR EXAMPLE:: “ likely gastroenteritis, appendicitis possible.”“ likely gastroenteritis, appendicitis possible.”

To patients, their families and jurors, unmet expectations are the emotional To patients, their families and jurors, unmet expectations are the emotional equivalent of broken promises.equivalent of broken promises.

Disappointment provokes anger.Disappointment provokes anger. Anger precipitates malpractice claimsAnger precipitates malpractice claims

Clearly explain that the assessment is an opinion that may change as new findings Clearly explain that the assessment is an opinion that may change as new findings develop and additional treatments may then be needed.develop and additional treatments may then be needed.


OptionsOptions::

Supplies evidence of Supplies evidence of INFORMED CONSENT INFORMED CONSENT or or INFORMED REFUSALINFORMED REFUSAL

Consent and Refusal are CHOICESConsent and Refusal are CHOICES To choose, requires ALTERNATIVESTo choose, requires ALTERNATIVES

Discuss Alternatives, risks and benefits of evaluations and treatmentsDiscuss Alternatives, risks and benefits of evaluations and treatments Review likely outcomes if treatment is withheld or refused andReview likely outcomes if treatment is withheld or refused and DOCUMENTDOCUMENT the patient’s ability to understand the repercussions of the the patient’s ability to understand the repercussions of the

refusalrefusal FOR EXAMPLEFOR EXAMPLE:: “ Consistent with the patient’s informed choice.”“ Consistent with the patient’s informed choice.”

Consider dictating during your patient encounter.Consider dictating during your patient encounter.


AdviceAdvice::

Share your expertise and encouragementShare your expertise and encouragement

Document your reinforcement of the principle that the physician Document your reinforcement of the principle that the physician advises and the patient choosesadvises and the patient chooses

Confront unreasonable expectationsConfront unreasonable expectations

Open disagreement is acceptableOpen disagreement is acceptable

Document encouragement of health maintenance and wellnessDocument encouragement of health maintenance and wellness FOR EXAMPLEFOR EXAMPLE:: “Urged smoking cessation and offered assistance.”“Urged smoking cessation and offered assistance.”


Agreed PlanAgreed Plan::

Document goals or expected outcomes and specify a Document goals or expected outcomes and specify a time frametime frame FOR EXAMPLEFOR EXAMPLE:: “ Recheck if not better in 5 days, sooner if worse.”“ Recheck if not better in 5 days, sooner if worse.”

Anticipate possible serious adverse events and teach your patients to Anticipate possible serious adverse events and teach your patients to notify you if they occur and document that you have done so.notify you if they occur and document that you have done so. FOR EXAMPLEFOR EXAMPLE:: “ Patient knows to call any time if an emergency arises.”“ Patient knows to call any time if an emergency arises.”

Document statement of agreed plan which seals patient’s accepted Document statement of agreed plan which seals patient’s accepted responsibility into the medical record.responsibility into the medical record. FOR EXAMPLEFOR EXAMPLE:: “Patient understands and agrees.”“Patient understands and agrees.”

“ “Patient agrees to follow up.”Patient agrees to follow up.”

“ “Patient states he will keep appointment.”Patient states he will keep appointment.”

A sample SOOOAAP note

Subjective: 41-year-old white female states, "I felt a lump on my right breast yesterday." Lump is nontender

without pruritus, bleeding or nipple discharge. No associated fevers, chills, fatigue, weight change, hot

flashes, back or joint pains. No personal or family history of breast cancer. Menarche at age 13, mother of

three, first born at age 22, all breast fed to age 1 without problems. Normal LMP three weeks ago,

contraception via condoms, infrequently performs BSE, drinks three to five cups of coffee daily, nonsmoker.

No other concerns today.

Objective: Chaperoned exam by nurse A.C. BP, 120/70; P=66; RR=14; T=99.2 oral; weight=138 lbs. Lungs

clear bilaterally, Heart RRR, no palpable vertebral tenderness or spinal deformity. Breast without skin color

or texture change, no retractions. Left breast without nodularity or expressed discharge. Right breast with

1.5 cm, mobile, smooth-bordered, rubbery, nontender lesion at 10 o'clock. No other lesions. No nipple

discharge. No axillary lymphadenopathy bilaterally.

Opinion: Right breast lump. Specific diagnosis unclear. History and exam favor fibrocystic change. Rule out

malignant involvement.

Options: Reviewed observation with re-examination through full menstrual cycle vs. ultrasound with

possible biopsy. Symptomatic treatments reviewed including caffeine reduction and hormonal stabilization

with OCPs.

Advice: Advised ultrasound characterization now with possible follow-up investigations including biopsy

and/or excision. Tripartite nature of breast cancer reviewed. Encouraged annual screening mammography

and reviewed its diagnostic limitations. Instructed BSE. Reminded patient she is due for lipid profile.

Agreed Plan: Patient chooses ultrasound now. Radiology appointment scheduled. She understands need

for close follow up and states she'll keep appointments. Recheck in one week. Dictated in patient's

presence.

Many physicians complain that they do Many physicians complain that they do not have the time to write sufficient not have the time to write sufficient

records!records!

““Would you rather spend the time in Would you rather spend the time in court for 12 weeks, 5 days a week, from court for 12 weeks, 5 days a week, from

9am to 5pm?”9am to 5pm?”

Boschert, Sherry; Documentation dos and don’ts can derail a lawsuit, 2005 OB/GYN News.Boschert, Sherry; Documentation dos and don’ts can derail a lawsuit, 2005 OB/GYN News.

Do’s and Don’tsDo’s and Don’tsof Medical Documentationof Medical Documentation

Don’t Destroy EvidenceDon’t Destroy Evidence In some states, destroying a record is an added offense.In some states, destroying a record is an added offense.

Don’t Ever Change the RecordDon’t Ever Change the Record Sophisticated technology can detect alteration of records. Again, in some Sophisticated technology can detect alteration of records. Again, in some

states this is an added offense.states this is an added offense.

Do Label any addition to the chart as a “late entry”Do Label any addition to the chart as a “late entry” If it is self serving late addition, lawyers will hammer you with itIf it is self serving late addition, lawyers will hammer you with it If it attempts to be objective about what occurred and the its timing, then it is If it attempts to be objective about what occurred and the its timing, then it is

appropriate.appropriate.

Do Time and Date your entries in the recordDo Time and Date your entries in the record Chronicity is very important to reconstruct what happened.Chronicity is very important to reconstruct what happened. Don’t rely on memory – recall is faultyDon’t rely on memory – recall is faulty

Do include significant positives and negatives from the patient’s Do include significant positives and negatives from the patient’s history and physical examhistory and physical exam Many records lack any mention of history, or references to history are Many records lack any mention of history, or references to history are

illegible.illegible.

Do’s and Don’tsDo’s and Don’tsof Medical Documentationof Medical Documentation

Do Make your notes legible.Do Make your notes legible. You will not look credible in court if an unreadable squiggle has meaning to You will not look credible in court if an unreadable squiggle has meaning to

you and no one else.you and no one else.

Do indicate that you reviewed the laboratory data etcDo indicate that you reviewed the laboratory data etc Physicians frequently neglect to note these things in the record.Physicians frequently neglect to note these things in the record.

Do Describe your Management Plan wellDo Describe your Management Plan well Provide detail and rationale as to your plan.Provide detail and rationale as to your plan.

Don’t Editorialize about your patient or anyone elseDon’t Editorialize about your patient or anyone else Personal comments are recipe for legal disaster!Personal comments are recipe for legal disaster!

Don’t Add Risk Management CommentsDon’t Add Risk Management Comments ““There were not enough beds available.”There were not enough beds available.”

Don’t include Peer-Review CommentsDon’t include Peer-Review Comments ““Dr. Smith failed to arrive in a timely fashion.”Dr. Smith failed to arrive in a timely fashion.” Use the appropriate hospital committee to take the matter up, NOT the chart.Use the appropriate hospital committee to take the matter up, NOT the chart.

5 High Risk Diagnoses for 5 High Risk Diagnoses for MalpracticeMalpractice

Myocardial InfarctionMyocardial Infarction

Breast CancerBreast Cancer

AppendicitisAppendicitis

Lung CancerLung Cancer

Colon CancerColon Cancer


Myocardial InfarctionMyocardial Infarction Typical claim involves allegation of misdiagnosis or mismanagement of tests.Typical claim involves allegation of misdiagnosis or mismanagement of tests. Common pitfall is Common pitfall is POOR DOCUMENTATION POOR DOCUMENTATION of characteristics and of characteristics and

precipitating factors for chest pain.precipitating factors for chest pain.

Breast CancerBreast Cancer Most common allegation is that doctor’s actions or lack of action led to delay Most common allegation is that doctor’s actions or lack of action led to delay

in diagnosis with subsequent injury to the patient.in diagnosis with subsequent injury to the patient. Common pitfall is Common pitfall is failure to document failure to document a clear followup plan, failure to a clear followup plan, failure to

followup on abnormal mammograms, and failure to order diagnostic tests.followup on abnormal mammograms, and failure to order diagnostic tests.

AppendicitisAppendicitis Allegations concentrate on Allegations concentrate on failure to document failure to document an adequate examination and an adequate examination and

failure to provide proper followup care.failure to provide proper followup care. Common pitfall is Common pitfall is failure to document failure to document a reasonable effort to rule out a reasonable effort to rule out

appendicitis and appendicitis and failure to clearly document failure to clearly document and elucidate a followup plan and elucidate a followup plan should the patient’s symptoms change or worsen.should the patient’s symptoms change or worsen.


Lung CancerLung Cancer Typical allegation claims that physician did not recognize the importance of a Typical allegation claims that physician did not recognize the importance of a

symptom in enough time for early diagnosis and curative therapy.symptom in enough time for early diagnosis and curative therapy. Common pitfall is failure to order chest films in patients whose symptoms Common pitfall is failure to order chest films in patients whose symptoms

might indicate lung cancer.might indicate lung cancer.

Colon CanerColon Caner Typical claim is that physician did not intervene with diagnostic tests when Typical claim is that physician did not intervene with diagnostic tests when

symptoms indicated.symptoms indicated. Common pitfall is physician Common pitfall is physician fails to document fails to document the recommendation for a test the recommendation for a test

and if the patient refuses the test, and if the patient refuses the test, failure to document failure to document that the patient is made that the patient is made aware of the risks of refusal.aware of the risks of refusal.

““If I had known why my doctor ordered that sigmoidoscopy, I would have If I had known why my doctor ordered that sigmoidoscopy, I would have done it. He just did not explain it to me.”done it. He just did not explain it to me.”

““The palest ink is better than the strongest memory.”.”

Legal Ramifications of Medical Legal Ramifications of Medical DocumentationDocumentation

A Fully Documented record can forestall a suit.A Fully Documented record can forestall a suit.

A Poorly Documented record can lead an attorney to A Poorly Documented record can lead an attorney to aggressively pursue the claim.aggressively pursue the claim.

Benefits of Full DocumentationBenefits of Full Documentation It provides Proof that you indeed did the right thing.It provides Proof that you indeed did the right thing.

Not writing it down affects the weight of your testimonyNot writing it down affects the weight of your testimony All things being equal, a jury is much more likely to believe your testimony if it All things being equal, a jury is much more likely to believe your testimony if it

is supported by a good chart.is supported by a good chart.

It support the idea that you are a careful, caring physician who gave adequate It support the idea that you are a careful, caring physician who gave adequate thought and consideration to the case.thought and consideration to the case.

Billing Ramifications of Billing Ramifications of Medical DocumentationMedical Documentation

Billing GuidelinesBilling Guidelines The service(s) must be medically necessaryThe service(s) must be medically necessary..

This is by Medicare’s definition, This is by Medicare’s definition, NOTNOT yours. yours. The service(s) must be performedThe service(s) must be performed..

If you bill for a service that you did not perform, then the service was If you bill for a service that you did not perform, then the service was NOTNOT performed.performed.

If you bill for a service and you performed a different service, the service If you bill for a service and you performed a different service, the service you billed for was you billed for was NOTNOT performed either. performed either.

The service(s) performed must be sufficiently documented to show medical The service(s) performed must be sufficiently documented to show medical necessity.necessity.

This is the most important.This is the most important. It all comes down to It all comes down to DOCUMENTATIONDOCUMENTATION.. You can be a highly credentialed physician who does great work and you You can be a highly credentialed physician who does great work and you

are honest and bill exactly what you perform. However, if you don’t are honest and bill exactly what you perform. However, if you don’t document sufficiently for the services rendered, it is as if you did document sufficiently for the services rendered, it is as if you did NOTNOT perform the work at all.perform the work at all.

Billing Ramifications of Billing Ramifications of Medical DocumentationMedical Documentation

Medicare’s specific stand on Documentation:Medicare’s specific stand on Documentation:

If it is If it is NOTNOT documented documented then it then it did NOT happendid NOT happen

If it If it cannot be understood cannot be understood then it then it did NOT happendid NOT happen

If it If it cannot be read cannot be read then it then it did NOT happendid NOT happen

If it If it did NOT happen did NOT happen then it then it should NOT have been paidshould NOT have been paid

If it was paid If it was paid then they will then they will ask for the money backask for the money back

(usually with a “tip” attached)(usually with a “tip” attached)

CASESCASES

FACTSFACTS::

The patient, a 51-year-old, self-employed truck driver with a history of heavy smoking The patient, a 51-year-old, self-employed truck driver with a history of heavy smoking and alcohol use, sought treatment from Dr. M (an internist) for arthritis. At his initial and alcohol use, sought treatment from Dr. M (an internist) for arthritis. At his initial visit, the patient refused a complete physical. He said that he didn't have health visit, the patient refused a complete physical. He said that he didn't have health insurance and couldn't afford it. insurance and couldn't afford it.

Dr. M saw the patient for arthritis treatments nine times over the next 11 months. At his Dr. M saw the patient for arthritis treatments nine times over the next 11 months. At his 10th visit (although the patient had no complaints of chest pain) Dr. M convinced him 10th visit (although the patient had no complaints of chest pain) Dr. M convinced him to undergo a baseline EKG, which revealed some abnormalities. Dr. M recommended to undergo a baseline EKG, which revealed some abnormalities. Dr. M recommended a referral to a cardiologist, which the patient refused and stated he couldn't afford. a referral to a cardiologist, which the patient refused and stated he couldn't afford. Dr. M did not document the fact that the patient refused both of his recommendations Dr. M did not document the fact that the patient refused both of his recommendations - to undergo a complete physical and to consult with a cardiologist about the EKG - to undergo a complete physical and to consult with a cardiologist about the EKG results.results.

Ten days after his last appointment with Dr. M, the patient was found dead in the sleeper Ten days after his last appointment with Dr. M, the patient was found dead in the sleeper portion of his semi-truck. An autopsy identified the cause of death as atherosclerotic portion of his semi-truck. An autopsy identified the cause of death as atherosclerotic cardiovascular disease with a myocardial infarction.cardiovascular disease with a myocardial infarction.

The patient's wife filed suit alleging failure to: properly diagnose and treat the patient; The patient's wife filed suit alleging failure to: properly diagnose and treat the patient; obtain timely cardiac consultation; and conduct follow-up EKGs.obtain timely cardiac consultation; and conduct follow-up EKGs.

ISSUESISSUES::

The issues in this case included: The issues in this case included:

failure to inform patient of the possible consequences of delaying the detection of failure to inform patient of the possible consequences of delaying the detection of potential cardiac disease potential cardiac disease

failure to document non-compliance failure to document non-compliance

lack of informed refusal lack of informed refusal

OUTCOMEOUTCOME::

The case resulted in a settlement on behalf of the physician.The case resulted in a settlement on behalf of the physician.

RISK MANAGEMENT LESSONSRISK MANAGEMENT LESSONS::

Courts have established that it is the physician's responsibility not only to Courts have established that it is the physician's responsibility not only to inform patients of recommended treatment, but also the consequences of inform patients of recommended treatment, but also the consequences of not following the physician's recommendations. In this case, Dr. M not following the physician's recommendations. In this case, Dr. M breached his duty of care by failing to inform the patient of the potentially breached his duty of care by failing to inform the patient of the potentially serious consequences of not consulting with a cardiologist.serious consequences of not consulting with a cardiologist.

The lack of documentation indicating that Dr. M discussed cardiac risks with The lack of documentation indicating that Dr. M discussed cardiac risks with the patient or that the patient refused to see a cardiologist made this case the patient or that the patient refused to see a cardiologist made this case impossible to defend.impossible to defend.

FACTSFACTS::

The patient, a 34-year-old man with a ten-year history of poorly controlled diabetes, sought treatment The patient, a 34-year-old man with a ten-year history of poorly controlled diabetes, sought treatment from an internist who prescribed Lisinopril 5mg/day. Over the next year, the patient's creatinine from an internist who prescribed Lisinopril 5mg/day. Over the next year, the patient's creatinine levels fluctuated within the normal ranges. During the second year of taking the medication, at two levels fluctuated within the normal ranges. During the second year of taking the medication, at two consecutive office visits that were four months apart, the patient's creatinine levels varied between consecutive office visits that were four months apart, the patient's creatinine levels varied between the abnormal ranges of 4.7 and 7.4 mg/dL, respectively. The internist referred the patient to his the abnormal ranges of 4.7 and 7.4 mg/dL, respectively. The internist referred the patient to his choice of three different nephrologists; however, the patient never made an appointment to see one choice of three different nephrologists; however, the patient never made an appointment to see one of them. of them.

Nearly a year after the nephrology referral, the patient was involved in a car accident and admitted to the Nearly a year after the nephrology referral, the patient was involved in a car accident and admitted to the hospital. During his hospital stay, it was discovered that the patient had a creatinine level of 12.6 hospital. During his hospital stay, it was discovered that the patient had a creatinine level of 12.6 mg/dL and was in renal failure. The patient underwent dialysis treatments and a kidney transplant. mg/dL and was in renal failure. The patient underwent dialysis treatments and a kidney transplant. He also filed a lawsuit against the internist alleging failure to properly manage his diabetes and He also filed a lawsuit against the internist alleging failure to properly manage his diabetes and creatinine levels.creatinine levels.

Upon receiving notice of the lawsuit, the internist reviewed the patient's medical record and realized that Upon receiving notice of the lawsuit, the internist reviewed the patient's medical record and realized that he had not recorded everything he told the patient regarding the risk of kidney failure, the he had not recorded everything he told the patient regarding the risk of kidney failure, the importance of adhering to a diabetes regimen, and the importance of seeing a nephrologist. Based importance of adhering to a diabetes regimen, and the importance of seeing a nephrologist. Based on his recollection of conversations with the patient, the internist added this information to the on his recollection of conversations with the patient, the internist added this information to the medical record prior to releasing it to the plaintiff's attorney.medical record prior to releasing it to the plaintiff's attorney.

During trial, the plaintiff attorney was able to prove, via forensic experts, that the internist added to the During trial, the plaintiff attorney was able to prove, via forensic experts, that the internist added to the existing medical record entries. This had an extremely negative affect on his credibility in the eyes existing medical record entries. This had an extremely negative affect on his credibility in the eyes of the jurors, effectively sabotaging the physician's defense. of the jurors, effectively sabotaging the physician's defense.

ISSUESISSUES::

The issues in this case included: The issues in this case included:

inadequate medical record documentation inadequate medical record documentation

failure to track whether the patient followed through on the referral to a nephrologist failure to track whether the patient followed through on the referral to a nephrologist

failure to document non-compliance failure to document non-compliance

lack of informed refusal lack of informed refusal

alteration of the patient's medical record after the fact - this critical issue made the case extremely alteration of the patient's medical record after the fact - this critical issue made the case extremely difficult to successfully defend difficult to successfully defend

OUTCOMEOUTCOME::

Prior to a verdict being rendered, the case was settled on behalf of the plaintiff for a Prior to a verdict being rendered, the case was settled on behalf of the plaintiff for a significant sum of money.significant sum of money.


As this case clearly demonstrates, it is never acceptable to alter a medical record, even if As this case clearly demonstrates, it is never acceptable to alter a medical record, even if the reason appears to be harmless or is an attempt to document what the physician the reason appears to be harmless or is an attempt to document what the physician remembers to have occurred. Altering the record after the fact greatly increases the remembers to have occurred. Altering the record after the fact greatly increases the likelihood of a plaintiff verdict in a malpractice claim. It also can subject the likelihood of a plaintiff verdict in a malpractice claim. It also can subject the physician to disciplinary hearings and sanctions by state licensing boards and physician to disciplinary hearings and sanctions by state licensing boards and hospitals at which the physician has staff privileges. Fines, attorney fees and other hospitals at which the physician has staff privileges. Fines, attorney fees and other costs resulting from these hearings are not covered under American Physicians' costs resulting from these hearings are not covered under American Physicians' policy. And, in many states, alteration of a medical record could result in criminal policy. And, in many states, alteration of a medical record could result in criminal prosecution. prosecution.

Upon receiving notice of a lawsuit, it is recommended that the patient's medical record Upon receiving notice of a lawsuit, it is recommended that the patient's medical record be locked in a secure cabinet with limited access. In the case of electronic medical be locked in a secure cabinet with limited access. In the case of electronic medical records, the physician should check with their software vendor to see if they can records, the physician should check with their software vendor to see if they can prohibit access to the patient's file. It is important for physicians and staff members prohibit access to the patient's file. It is important for physicians and staff members to understand that medical records should never be altered, amended, or revised to understand that medical records should never be altered, amended, or revised after receiving notice of a lawsuit. Altering a medical record includes adding and/or after receiving notice of a lawsuit. Altering a medical record includes adding and/or removing information from the chart.removing information from the chart.

FACTSFACTS::

A medical assistant, who had been employed at a health clinic for approximately six months, A medical assistant, who had been employed at a health clinic for approximately six months, asked one of the physicians to look at his eye so he would not have to leave work to see his asked one of the physicians to look at his eye so he would not have to leave work to see his family physician. He said he had been raking leaves and thought something had gotten in family physician. He said he had been raking leaves and thought something had gotten in his eye because it was irritated, watery, and pink. his eye because it was irritated, watery, and pink.

The physician took him to an examination room and shined a light on the eye. In deposition, The physician took him to an examination room and shined a light on the eye. In deposition, the physician stated that there appeared to be a slight abnormality on the cornea, which she the physician stated that there appeared to be a slight abnormality on the cornea, which she felt could have been a small foreign body or an abrasion. She did not think it looked like felt could have been a small foreign body or an abrasion. She did not think it looked like "pink eye," but was not sure. The physician claimed she explained to the employee that, "pink eye," but was not sure. The physician claimed she explained to the employee that, because she did not have a slit lamp and was not sure what was causing the problem, the because she did not have a slit lamp and was not sure what was causing the problem, the employee should see an ophthalmologist soon to determine if there was a foreign body in employee should see an ophthalmologist soon to determine if there was a foreign body in the eye. The physician also wrote him a prescription for Cortisporin eye drops. the eye. The physician also wrote him a prescription for Cortisporin eye drops.

The employee filled the prescription, but did not go to an ophthalmologist. In deposition, the The employee filled the prescription, but did not go to an ophthalmologist. In deposition, the employee claimed he was not instructed to see an ophthalmologist. He also said that when employee claimed he was not instructed to see an ophthalmologist. He also said that when he came to work the next day and told the physician his eye was still watery, she told him to he came to work the next day and told the physician his eye was still watery, she told him to keep using the eye drops. He also admitted in deposition that he did not know what a slit keep using the eye drops. He also admitted in deposition that he did not know what a slit lamp was or why it might be used. lamp was or why it might be used.

Approximately a week and a half later, the employee went to an urgent care center complaining Approximately a week and a half later, the employee went to an urgent care center complaining that his eye felt like it was being poked by needles. The urgent care center arranged for him that his eye felt like it was being poked by needles. The urgent care center arranged for him to see a specialist, who diagnosed Herpes Simplex Keratitis. This ultimately resulted in to see a specialist, who diagnosed Herpes Simplex Keratitis. This ultimately resulted in structural damage to the cornea and likely permanent loss of vision.structural damage to the cornea and likely permanent loss of vision.

ISSUESISSUES::

Allegations in this case included: 1) failure to timely and properly diagnose the herpes simplex Allegations in this case included: 1) failure to timely and properly diagnose the herpes simplex virus; 2) failure to refer the employee to a qualified healthcare provider in a timely manner; virus; 2) failure to refer the employee to a qualified healthcare provider in a timely manner; and 3) improperly prescribing a topical steroid, which caused the keratitis to rapidly worsen. and 3) improperly prescribing a topical steroid, which caused the keratitis to rapidly worsen. (The plaintiff expert asserted that antiviral agents should have been ordered instead.) (The plaintiff expert asserted that antiviral agents should have been ordered instead.)

OUTCOMEOUTCOME::

The case went to trial, but was settled prior to a verdict being rendered.The case went to trial, but was settled prior to a verdict being rendered.


Because there was no medical record documenting the treatment given or the advice Because there was no medical record documenting the treatment given or the advice provided, this case revolved around the physician's recollections of events versus provided, this case revolved around the physician's recollections of events versus the employee's. During trial, the plaintiff's attorney strived to create ambiguity in the the employee's. During trial, the plaintiff's attorney strived to create ambiguity in the minds of jurors as to time frames for referral and treatment. This appeared to be minds of jurors as to time frames for referral and treatment. This appeared to be effective with the jurors, resulting in the defendant physician settling the claim. effective with the jurors, resulting in the defendant physician settling the claim.

This case demonstrates the need to document all care provided, even when the patient is This case demonstrates the need to document all care provided, even when the patient is an employee. Everyone treated in a physician's practice should have a medical an employee. Everyone treated in a physician's practice should have a medical record documenting the treatment provided, prescriptions provided, and record documenting the treatment provided, prescriptions provided, and recommendations for follow-up. recommendations for follow-up.

Unfortunately, this physician "thought" the employee had a better understanding of the Unfortunately, this physician "thought" the employee had a better understanding of the treatment and recommendations. It is common for doctors to assume that employees treatment and recommendations. It is common for doctors to assume that employees and other medical personnel know more about their medical condition than they and other medical personnel know more about their medical condition than they really do. As this case demonstrates, such assumptions can lead to dire really do. As this case demonstrates, such assumptions can lead to dire consequences for the physician.consequences for the physician.

FACTSFACTS::

The patient, a 50-year-old woman, began treatment with her primary care physician in 1995 for persistent The patient, a 50-year-old woman, began treatment with her primary care physician in 1995 for persistent difficulty with hot flashes and mood swings related to menopause. The physician performed a complete difficulty with hot flashes and mood swings related to menopause. The physician performed a complete gynecologic physical, including a bilateral breast examination. He specifically noted that the breast gynecologic physical, including a bilateral breast examination. He specifically noted that the breast examination showed no gross lesions, dominant masses, tenderness or discharge. He ordered a screening examination showed no gross lesions, dominant masses, tenderness or discharge. He ordered a screening mammogram, and placed the patient on Hormone Replacement Therapy (HRT) to relieve her menopausal mammogram, and placed the patient on Hormone Replacement Therapy (HRT) to relieve her menopausal symptoms. The mammogram was performed later the same year and read as normal. However, it noted that symptoms. The mammogram was performed later the same year and read as normal. However, it noted that the patient had unusually dense and fibrocystic breast tissue.the patient had unusually dense and fibrocystic breast tissue.

Three years later, in September 1998, the patient returned to her primary care physician complaining of a Three years later, in September 1998, the patient returned to her primary care physician complaining of a possible lump or cyst in her right breast. Upon examination, the physician noted a "fibrocystic like possible lump or cyst in her right breast. Upon examination, the physician noted a "fibrocystic like irregularity" in the area of the upper outer quadrant of the right breast. In response to the patient's irregularity" in the area of the upper outer quadrant of the right breast. In response to the patient's concerns, he referred her for a diagnostic mammogram and breast ultrasound of the right breast. concerns, he referred her for a diagnostic mammogram and breast ultrasound of the right breast.

The medical record demonstrated that the physician spoke with the patient via telephone when the test The medical record demonstrated that the physician spoke with the patient via telephone when the test results were returned. Documentation of this discussion showed that he informed the patient her results were returned. Documentation of this discussion showed that he informed the patient her mammogram results identified very dense breast tissue with architectural distortion due to scarring from mammogram results identified very dense breast tissue with architectural distortion due to scarring from previous breast reduction surgery and a shadowing in the area behind the right nipple. In addition, the previous breast reduction surgery and a shadowing in the area behind the right nipple. In addition, the patient was told that the mammogram report stated there was no suspicion of a mass. Regardless, the patient was told that the mammogram report stated there was no suspicion of a mass. Regardless, the physician advised her to have an ultrasound, which was performed a month later. The physician informed physician advised her to have an ultrasound, which was performed a month later. The physician informed the patient that the results of the ultrasound report were normal without any indication of a tumor, mass or the patient that the results of the ultrasound report were normal without any indication of a tumor, mass or cyst. This discussion was also thoroughly documented in the medical record. cyst. This discussion was also thoroughly documented in the medical record.

The patient was instructed to return in nine months for a complete physical examination, including an The patient was instructed to return in nine months for a complete physical examination, including an annual gynecologic examination. The physician also documented that he had an extensive conversation annual gynecologic examination. The physician also documented that he had an extensive conversation with the patient concerning the current approach to HRT. The patient stated she wanted to continue HRT with the patient concerning the current approach to HRT. The patient stated she wanted to continue HRT because she could not function without some hormone treatment. because she could not function without some hormone treatment.

Eight months after the patient's last discussion with her primary care physician, she saw a gynecologist Eight months after the patient's last discussion with her primary care physician, she saw a gynecologist with complaints of pain in her right breast. The gynecologist performed an examination and noted a "visible with complaints of pain in her right breast. The gynecologist performed an examination and noted a "visible prominence" in the upper outer quadrant of the right breast. Further studies showed a density suspicious prominence" in the upper outer quadrant of the right breast. Further studies showed a density suspicious for malignancy and a subsequent needle biopsy was positive for an invasive carcinoma, which was mixed for malignancy and a subsequent needle biopsy was positive for an invasive carcinoma, which was mixed ductile and lobular type, Grade II.ductile and lobular type, Grade II.

The patient then filed suit alleging that the primary care physician was negligent in his examinations and The patient then filed suit alleging that the primary care physician was negligent in his examinations and failed to refer her to a breast surgeon, resulting in a delayed diagnosis of her breast cancer. failed to refer her to a breast surgeon, resulting in a delayed diagnosis of her breast cancer.

OUTCOMEOUTCOME::

The case went to trial where a verdict in favor of the physician was rendered. The case went to trial where a verdict in favor of the physician was rendered.


This case prevailed at trial for several reasons. While it was vital that defense This case prevailed at trial for several reasons. While it was vital that defense experts were able to support the care rendered, it was the well experts were able to support the care rendered, it was the well documented medical record that really helped this physician. The documented medical record that really helped this physician. The physician recorded his thought processes and provided clear evidence of physician recorded his thought processes and provided clear evidence of discussions regarding the patient's care plan and possible outcomes. discussions regarding the patient's care plan and possible outcomes. According to jurors who were polled following the trial, it was the According to jurors who were polled following the trial, it was the concurrent documentation of findings, thought processes and plans for concurrent documentation of findings, thought processes and plans for care that won the case.care that won the case.

Medical records often are the most objective evidence offered in the defense Medical records often are the most objective evidence offered in the defense against a malpractice claim. As demonstrated in this case, complete, against a malpractice claim. As demonstrated in this case, complete, accurate, and objective medical records lend credibility to the physician accurate, and objective medical records lend credibility to the physician and provide an excellent defense against claims of negligence. and provide an excellent defense against claims of negligence.

FACTSFACTS::

In January of 2002, a 22-year-old woman saw her primary care physician with complaints of nausea and In January of 2002, a 22-year-old woman saw her primary care physician with complaints of nausea and fatigue. The physician noted that the patient had abnormally high rates of protein in her urine and fatigue. The physician noted that the patient had abnormally high rates of protein in her urine and referred her to a urologist for an ultrasound and a 24-hour urinalysis. The patient saw the urologist referred her to a urologist for an ultrasound and a 24-hour urinalysis. The patient saw the urologist in February 2002. The urologist ordered a kidney ultrasound, which showed cysts on both kidneys in February 2002. The urologist ordered a kidney ultrasound, which showed cysts on both kidneys consistent with polycystic kidney disease. The urologist referred the patient to a nephrologist. The consistent with polycystic kidney disease. The urologist referred the patient to a nephrologist. The nephrologist's office scheduled an initial appointment with the patient for April 16, 2002.nephrologist's office scheduled an initial appointment with the patient for April 16, 2002.

Early in March 2002, the patient's legs began swelling. She returned to her primary care physician who Early in March 2002, the patient's legs began swelling. She returned to her primary care physician who described her condition as 3+ edema to her thighs with 4+ protein in her urine. The physician did described her condition as 3+ edema to her thighs with 4+ protein in her urine. The physician did not attempt to change the patient's appointment with the nephrologist to an earlier date. Three days not attempt to change the patient's appointment with the nephrologist to an earlier date. Three days later, the patient's swelling had extended to her abdomen and buttocks and she sought treatment at later, the patient's swelling had extended to her abdomen and buttocks and she sought treatment at a local hospital. Laboratory work from the emergency room visit was faxed to the nephrologist. He a local hospital. Laboratory work from the emergency room visit was faxed to the nephrologist. He reviewed the lab results and put the patient on diuretics. No attempt was made by the nephrologist reviewed the lab results and put the patient on diuretics. No attempt was made by the nephrologist to reschedule her April 16 appointment to an earlier date. to reschedule her April 16 appointment to an earlier date.

Throughout the month of March, the patient became more ill with malaise, fatigue, nausea and lower Throughout the month of March, the patient became more ill with malaise, fatigue, nausea and lower abdominal discomfort. As her symptoms increased, both the patient and her mother called the abdominal discomfort. As her symptoms increased, both the patient and her mother called the nephrologist's office several times to describe her worsening condition. None of these phone calls nephrologist's office several times to describe her worsening condition. None of these phone calls were documented in the patient's medical record. The only documentation found was a note on were documented in the patient's medical record. The only documentation found was a note on March 30 indicating that the appointment of April 16 was moved up to April 7. There was no March 30 indicating that the appointment of April 16 was moved up to April 7. There was no documentation as to why the appointment had been rescheduled or to record any discussions documentation as to why the appointment had been rescheduled or to record any discussions between the patient and the physician. During deposition, the nephrologist claimed that he had between the patient and the physician. During deposition, the nephrologist claimed that he had never been notified of the telephone calls and did not recall why the appointment had been never been notified of the telephone calls and did not recall why the appointment had been changed. changed.

On April 4, 2002, three days before the patient was scheduled to see the nephrologist, she collapsed at On April 4, 2002, three days before the patient was scheduled to see the nephrologist, she collapsed at home. It was determined that she was dehydrated with severe nephrotic syndrome and exertional home. It was determined that she was dehydrated with severe nephrotic syndrome and exertional dyspnea. The patient was hospitalized for a prolonged period of time.dyspnea. The patient was hospitalized for a prolonged period of time.

ISSUESISSUES::

The patient sued the nephrologist for delay in diagnosis, failure to respond to telephoned symptoms, The patient sued the nephrologist for delay in diagnosis, failure to respond to telephoned symptoms, and delay of treatment.and delay of treatment.

OUTCOMEOUTCOME::

The case was settled out of court.The case was settled out of court.


Although there were questions regarding whether the primary care physician should Although there were questions regarding whether the primary care physician should have contacted the nephrologist to request an urgent appointment, the main issue in have contacted the nephrologist to request an urgent appointment, the main issue in this case was the lack of documentation of the telephone calls made by the patient this case was the lack of documentation of the telephone calls made by the patient and mother to the nephrologist. The calls were not returned or given to the specialist. and mother to the nephrologist. The calls were not returned or given to the specialist.

Telephone communication is a critical part of the overall care and management of Telephone communication is a critical part of the overall care and management of patients and also presents a significant area of liability exposure. Poor patients and also presents a significant area of liability exposure. Poor documentation, or a lack of documentation, frequently impacts the defense of a documentation, or a lack of documentation, frequently impacts the defense of a medical malpractice claim. In these instances, the defense often has to rely on the medical malpractice claim. In these instances, the defense often has to rely on the memory of the physician and/or staff to recall the telephone call. The physician or memory of the physician and/or staff to recall the telephone call. The physician or staff recall often conflicts with that of the patient. Juries know that medical practices staff recall often conflicts with that of the patient. Juries know that medical practices receive several hundred calls a year, but the patient only has to remember one or a receive several hundred calls a year, but the patient only has to remember one or a few calls. Therefore, juries often believe the patient rather than the physician. few calls. Therefore, juries often believe the patient rather than the physician.

Telephone triage requires accurate assessment without the benefit of a face-to-face Telephone triage requires accurate assessment without the benefit of a face-to-face encounter. For this reason, only professional staff with appropriate training should encounter. For this reason, only professional staff with appropriate training should provide telephone assessments. Qualifications and training should be clearly defined provide telephone assessments. Qualifications and training should be clearly defined in each staff member's job description.in each staff member's job description.

FACTSFACTS::

The patient, a 56-year-old female, was admitted to the hospital with gallbladder complaints and jaundice. The patient, a 56-year-old female, was admitted to the hospital with gallbladder complaints and jaundice. She was scheduled for a laparoscopic cholecystectomy to take place in three days. In anticipation She was scheduled for a laparoscopic cholecystectomy to take place in three days. In anticipation of the surgery, and as part of the preoperative workup, the surgeon ordered a chest x-ray. The film of the surgery, and as part of the preoperative workup, the surgeon ordered a chest x-ray. The film was obtained on the day the patient was admitted to the hospital (three days before the surgery).was obtained on the day the patient was admitted to the hospital (three days before the surgery).

One day before the surgery, a CRNA performed a pre-anesthesia evaluation and noticed that the One day before the surgery, a CRNA performed a pre-anesthesia evaluation and noticed that the patient's chart did not contain the chest x-ray report. The CRNA wrote an order in large, legible patient's chart did not contain the chest x-ray report. The CRNA wrote an order in large, legible handwriting to have the report of the chest x-ray put into the chart prior to the surgery scheduled handwriting to have the report of the chest x-ray put into the chart prior to the surgery scheduled for the next morning. for the next morning.

The film was read by a radiologist early in the morning on the day of the surgery. The radiologist quickly The film was read by a radiologist early in the morning on the day of the surgery. The radiologist quickly dictated and transcribed a report that noted a suspicious right apical pulmonary mass posteriorly dictated and transcribed a report that noted a suspicious right apical pulmonary mass posteriorly located over the thoracic spine and measuring 3 ½ centimeters in diameter. She recommended the located over the thoracic spine and measuring 3 ½ centimeters in diameter. She recommended the patient undergo a follow-up CT scan. The radiologist did not telephone or speak to anyone involved patient undergo a follow-up CT scan. The radiologist did not telephone or speak to anyone involved in the surgery about the abnormal finding. in the surgery about the abnormal finding.

A laparoscopic cholecystectomy was performed as scheduled. The surgical progress notes and A laparoscopic cholecystectomy was performed as scheduled. The surgical progress notes and discharge summary made no mention of the radiology report. The patient was discharged without discharge summary made no mention of the radiology report. The patient was discharged without being informed about the results of her chest x-ray. being informed about the results of her chest x-ray.

Evaluation and treatment of the mass did not occur until 19 months later, at which time the patient's Evaluation and treatment of the mass did not occur until 19 months later, at which time the patient's lung cancer was diagnosed as a Stage IIIB. The mass was inoperable because it had spread into lung cancer was diagnosed as a Stage IIIB. The mass was inoperable because it had spread into the pleura. The patient underwent extensive chemotherapy but eventually died from the cancer. A the pleura. The patient underwent extensive chemotherapy but eventually died from the cancer. A lawsuit was brought against the radiologist, surgeon and hospital.lawsuit was brought against the radiologist, surgeon and hospital.

ISSUEISSUE::

The primary issue in this case is a delay in the diagnosis of lung cancer due to: (1) failure of the The primary issue in this case is a delay in the diagnosis of lung cancer due to: (1) failure of the radiologist to read the x-ray and produce a report in a timely manner; (2) failure of the radiologist to radiologist to read the x-ray and produce a report in a timely manner; (2) failure of the radiologist to appropriately communicate results of the x-ray; (3) failure of the surgeon to review the results of appropriately communicate results of the x-ray; (3) failure of the surgeon to review the results of the preoperative x-ray; and (4) failure of the surgeon to inform the patient of the abnormal finding the preoperative x-ray; and (4) failure of the surgeon to inform the patient of the abnormal finding and recommended follow-up. and recommended follow-up.

OUTCOMEOUTCOME::

The surgeon and hospital settled out of court. A jury returned a verdict in favor of the plaintiff and The surgeon and hospital settled out of court. A jury returned a verdict in favor of the plaintiff and against the radiologist. against the radiologist.


Following are recommended steps that could have prevented this delay in diagnosis:Following are recommended steps that could have prevented this delay in diagnosis:

1) Abnormal findings arising from a preoperative evaluation should be verbally communicated to the 1) Abnormal findings arising from a preoperative evaluation should be verbally communicated to the appropriate caregiver. appropriate caregiver.

Although the radiologist did not read the chest film and write her report until the morning of the surgery Although the radiologist did not read the chest film and write her report until the morning of the surgery (almost three days after the x-ray was taken) she did not consider it necessary to directly contact (almost three days after the x-ray was taken) she did not consider it necessary to directly contact the surgeon regarding the abnormal finding. In deposition, she indicated that her report was the surgeon regarding the abnormal finding. In deposition, she indicated that her report was available to the surgeon since any physician can listen to dictated reports on the hospital's voice available to the surgeon since any physician can listen to dictated reports on the hospital's voice dictation service. In addition, it was hospital policy that preoperative radiology reports are sent to dictation service. In addition, it was hospital policy that preoperative radiology reports are sent to the patient's floor immediately after transcription as well as a copy sent to the ordering physician. the patient's floor immediately after transcription as well as a copy sent to the ordering physician. The radiologist admitted in testimony that she could not have been certain that the report could be The radiologist admitted in testimony that she could not have been certain that the report could be transcribed and added to the chart prior to the start of the surgery. In fact, the chest x-ray report did transcribed and added to the chart prior to the start of the surgery. In fact, the chest x-ray report did not get placed in the medical record prior to the start of surgery. not get placed in the medical record prior to the start of surgery.

2) Surgeons must review all pre-operative tests to be sure the patient is cleared for surgery. 2) Surgeons must review all pre-operative tests to be sure the patient is cleared for surgery.

Despite the large note placed by the CRNA in the patient's chart, the surgeon and operating room Despite the large note placed by the CRNA in the patient's chart, the surgeon and operating room nurses failed to read and adhere to the note, and failed to communicate with one another to nurses failed to read and adhere to the note, and failed to communicate with one another to determine if the x-ray report had in fact been obtained and read prior to the start of surgery. Had determine if the x-ray report had in fact been obtained and read prior to the start of surgery. Had this been a more significant respiratory problem, the patient could have died on the table. this been a more significant respiratory problem, the patient could have died on the table.

3) Prior to discharge, physicians must ensure the results of all labs, diagnostic tests and vital signs are 3) Prior to discharge, physicians must ensure the results of all labs, diagnostic tests and vital signs are known and recorded in the medical record, and that the patient is adequately informed. known and recorded in the medical record, and that the patient is adequately informed.

The surgeon made no effort to obtain and read the radiology report either before or after surgery. He The surgeon made no effort to obtain and read the radiology report either before or after surgery. He remained unaware of the abnormal finding and the need for a follow-up CT scan throughout the remained unaware of the abnormal finding and the need for a follow-up CT scan throughout the patient's hospitalization.patient's hospitalization.

FACTSFACTS

The patient, a 52-year-old woman, had been treated by an internal medicine physician for approximately The patient, a 52-year-old woman, had been treated by an internal medicine physician for approximately 12 years. During this time, the physician determined that the patient had iron-deficiency anemia 12 years. During this time, the physician determined that the patient had iron-deficiency anemia and advised her on several occasions to have an endoscopic evaluation. He even sent a letter of and advised her on several occasions to have an endoscopic evaluation. He even sent a letter of referral to a gastroenterologist, a copy of which was placed in the patient's medical record. referral to a gastroenterologist, a copy of which was placed in the patient's medical record. However, the physician did not mention the possibility of cancer to the patient or the importance of However, the physician did not mention the possibility of cancer to the patient or the importance of the test in identifying certain types of cancer. Despite the physician's repeated advice, the patient the test in identifying certain types of cancer. Despite the physician's repeated advice, the patient did not follow through with the testing. did not follow through with the testing.

The patient changed physicians and had a copy of her medical record forwarded to her new internist. The patient changed physicians and had a copy of her medical record forwarded to her new internist. While being treated by the new internist, the patient had an endoscopy that revealed colon cancer. While being treated by the new internist, the patient had an endoscopy that revealed colon cancer. The patient had curative surgery but was left with a colostomy. The patient then sued the original The patient had curative surgery but was left with a colostomy. The patient then sued the original internist for delay in diagnosis and failure to diagnose the colon cancer.internist for delay in diagnosis and failure to diagnose the colon cancer.

After receiving a request for a copy of the medical record from a malpractice plaintiff attorney, the After receiving a request for a copy of the medical record from a malpractice plaintiff attorney, the original internist discovered that there were no notations in the chart documenting the referral to original internist discovered that there were no notations in the chart documenting the referral to the gastroenterologist, the repeated instructions to the patient to see the gastroenterologist, or the the gastroenterologist, the repeated instructions to the patient to see the gastroenterologist, or the importance of having the endoscopic evaluation. The physician remembered the patient and his importance of having the endoscopic evaluation. The physician remembered the patient and his repeated discussions with her about the need to have the endoscopy. He was concerned about the repeated discussions with her about the need to have the endoscopy. He was concerned about the lack of documentation and, prior to providing a copy of the record to the attorney, he altered the lack of documentation and, prior to providing a copy of the record to the attorney, he altered the medical record to add documentation of his discussions with the patient, as well as his referral to medical record to add documentation of his discussions with the patient, as well as his referral to the gastroenterologist. The new documentation was made to appear as if the notations had been the gastroenterologist. The new documentation was made to appear as if the notations had been made at the time of the patient visits. The physician reasoned that he was merely documenting made at the time of the patient visits. The physician reasoned that he was merely documenting what had actually occurred and therefore he was not really altering the medical record. In addition, what had actually occurred and therefore he was not really altering the medical record. In addition, he was concerned that his malpractice insurer would have a difficult time defending the case he was concerned that his malpractice insurer would have a difficult time defending the case without the added documentation and he wanted to assist the insurer in providing a strong without the added documentation and he wanted to assist the insurer in providing a strong defense. defense.

ISSUESISSUES

The issues in this case involved delay in diagnosis, failure to diagnose, inadequate documentation, and The issues in this case involved delay in diagnosis, failure to diagnose, inadequate documentation, and alteration of the medical record.alteration of the medical record.

OUTCOMEOUTCOME

The jury awarded the plaintiff compensatory and punitive damages. The punitive damages resulted from The jury awarded the plaintiff compensatory and punitive damages. The punitive damages resulted from the alteration of the medical record. In addition, the state licensing board imposed sanctions the alteration of the medical record. In addition, the state licensing board imposed sanctions against the physician, including a large fine that was not covered by his insurance policy. Hearings against the physician, including a large fine that was not covered by his insurance policy. Hearings conducted by two hospitals at which the physician had staff privileges resulted in a six month conducted by two hospitals at which the physician had staff privileges resulted in a six month suspension of his privileges. Fortunately, the district attorney elected not to bring felony charges suspension of his privileges. Fortunately, the district attorney elected not to bring felony charges even though, technically, altering the record did constitute a criminal act.even though, technically, altering the record did constitute a criminal act.

RISK MANAGEMENT LESSONSRISK MANAGEMENT LESSONS

Two of the most frequent malpractice allegations arising from physician office practices are delay in Two of the most frequent malpractice allegations arising from physician office practices are delay in diagnosis and failure to diagnose. These allegations often result from:diagnosis and failure to diagnose. These allegations often result from:

inadequate communication between the physician and patient - such as the reason for and importance inadequate communication between the physician and patient - such as the reason for and importance of recommended tests or procedures; and/or of recommended tests or procedures; and/or

the absence of important office processes - such as follow-up systems, tracking systems, the absence of important office processes - such as follow-up systems, tracking systems, documentation protocols. documentation protocols.

When allegations involve communication issues, documentation of all conversations between the When allegations involve communication issues, documentation of all conversations between the physician and patient becomes critical.physician and patient becomes critical.

When the physician was unable to convince the patient to schedule the endoscopy, he should have When the physician was unable to convince the patient to schedule the endoscopy, he should have discussed the reason(s) for recommending it, and the potential consequences of non-compliance, discussed the reason(s) for recommending it, and the potential consequences of non-compliance, with the patient. By discussing the reason(s) for a test or procedure, or by better explaining its with the patient. By discussing the reason(s) for a test or procedure, or by better explaining its importance, physicians often are able to convince the patient to agree to have it done. In this case, importance, physicians often are able to convince the patient to agree to have it done. In this case, the subsequent treating internist was able to convince the patient to have the endoscopy. the subsequent treating internist was able to convince the patient to have the endoscopy.

It is important to remember that lack of documentation in the medical record about discussions with It is important to remember that lack of documentation in the medical record about discussions with patients makes defense of a case much more difficult, calls into question the thoroughness of the patients makes defense of a case much more difficult, calls into question the thoroughness of the care provided, and requires the physician to rely solely on his/her memory regarding the patient's care provided, and requires the physician to rely solely on his/her memory regarding the patient's treatment. This not only can be detrimental to continuity of patient care but also allows serious treatment. This not only can be detrimental to continuity of patient care but also allows serious questions to be raised in the minds of jurors. Lack of contemporaneous documentation makes it questions to be raised in the minds of jurors. Lack of contemporaneous documentation makes it difficult to prove what was actually discussed or actually occurred. It establishes a "he said, she difficult to prove what was actually discussed or actually occurred. It establishes a "he said, she said situation," which often proves to be a major disadvantage for the physician. said situation," which often proves to be a major disadvantage for the physician.


As this case clearly demonstrates, it is never acceptable to alter a medical As this case clearly demonstrates, it is never acceptable to alter a medical record, even if the reason appears to be harmless or is an attempt to record, even if the reason appears to be harmless or is an attempt to document what the physician remembers to have occurred. Altering the document what the physician remembers to have occurred. Altering the medical record is an indefensible action in the eyes of a jury, and can harm medical record is an indefensible action in the eyes of a jury, and can harm the credibility and veracity of the physician. If a physician believes that the credibility and veracity of the physician. If a physician believes that additions or revisions to a medical record have to be made, the changes additions or revisions to a medical record have to be made, the changes must be done properly.must be done properly.

Altering a medical record increases the likelihood of a plaintiff verdict in a Altering a medical record increases the likelihood of a plaintiff verdict in a malpractice claim. It also can subject the physician to disciplinary malpractice claim. It also can subject the physician to disciplinary hearings and sanctions by state licensing boards and hospitals at which hearings and sanctions by state licensing boards and hospitals at which the physician has staff privileges. Fines and costs resulting from these the physician has staff privileges. Fines and costs resulting from these hearings often are not covered by professional liability policies. And, in hearings often are not covered by professional liability policies. And, in many states, alteration of a medical record could result in criminal many states, alteration of a medical record could result in criminal prosecution.prosecution.

FACTSFACTS

The patient, a 44-year-old man, was involved in a motor vehicle accident and sustained The patient, a 44-year-old man, was involved in a motor vehicle accident and sustained burns to more than 25% of his body. He was admitted to the hospital's intensive care burns to more than 25% of his body. He was admitted to the hospital's intensive care unit and intubated to assist with his breathing. The patient often became agitated, unit and intubated to assist with his breathing. The patient often became agitated, making it difficult to maintain a secure airway. After the patient's thrashing caused making it difficult to maintain a secure airway. After the patient's thrashing caused the endotrachael tube to become displaced, his nurse contacted the on-call resident the endotrachael tube to become displaced, his nurse contacted the on-call resident for assistance. After examining the patient, the resident charted the following in the for assistance. After examining the patient, the resident charted the following in the hospital record:hospital record:

"Asked to evaluate patient because of desaturation and difficulty with airway "Asked to evaluate patient because of desaturation and difficulty with airway management. Evaluation of patient revealed ET (endotracheal tube) malpositioned management. Evaluation of patient revealed ET (endotracheal tube) malpositioned and not adequately ventilating patient, with pulse oximeter reading 40s %. I removed and not adequately ventilating patient, with pulse oximeter reading 40s %. I removed ET, masked patient until anesthesiology arrived to re-intubate.ET, masked patient until anesthesiology arrived to re-intubate. Of concern were the Of concern were the actions of the patient's nurse. She appeared preoccupied with the patient's dressing actions of the patient's nurse. She appeared preoccupied with the patient's dressing change instead of the urgent matter of establishing an airwaychange instead of the urgent matter of establishing an airway.. [Emphasis added] The [Emphasis added] The patient was re-intubated. Follow-up chest x-ray shows worsening infiltrates. We will patient was re-intubated. Follow-up chest x-ray shows worsening infiltrates. We will bronch patient. Need better control of pulmonary status.bronch patient. Need better control of pulmonary status. Per advice of attending Per advice of attending physician, I will complete an incident report on the nurse's actionsphysician, I will complete an incident report on the nurse's actions ." [Emphasis ." [Emphasis added]added]

Attempts to adequately control and maintain the patient's airway were unsuccessful and Attempts to adequately control and maintain the patient's airway were unsuccessful and he died the following day. he died the following day.

ISSUESISSUES

This case demonstrates that some types of documentation are not appropriate in the This case demonstrates that some types of documentation are not appropriate in the medical record. The specific issues in this case involve two inappropriate entries (as medical record. The specific issues in this case involve two inappropriate entries (as emphasized above) recorded by the resident in the medical record:emphasized above) recorded by the resident in the medical record:

1) His subjective opinion of the nurse's actions; and1) His subjective opinion of the nurse's actions; and2) His intention to complete an incident report 2) His intention to complete an incident report

OUTCOMEOUTCOME

The case was settled by the hospital and two physicians named in the lawsuit.The case was settled by the hospital and two physicians named in the lawsuit.


The purpose of the medical record is to record the patient's health care story, and it should The purpose of the medical record is to record the patient's health care story, and it should contain only clinically pertinent information. According to the Joint Commission's Hospital contain only clinically pertinent information. According to the Joint Commission's Hospital Accreditation Standards, "Accreditation Standards, "the medical record contains sufficient information to identify the the medical record contains sufficient information to identify the patient, support the diagnosis, justify the treatment, document the medical course and patient, support the diagnosis, justify the treatment, document the medical course and results, and promote continuity among healthcare providersresults, and promote continuity among healthcare providers." ."

Finger pointing, blame, and conflicts or arguments with other caregivers do not belong in the Finger pointing, blame, and conflicts or arguments with other caregivers do not belong in the medical record. The use of subjective accusatory terms represents a "red flag" to plaintiff medical record. The use of subjective accusatory terms represents a "red flag" to plaintiff attorneys and can not only spark a lawsuit, but in many cases create a winning case for the attorneys and can not only spark a lawsuit, but in many cases create a winning case for the plaintiff. Words such as "mistake," "error," "fault," "blunder," or "accidental oversight" plaintiff. Words such as "mistake," "error," "fault," "blunder," or "accidental oversight" should never appear in the record. Physicians must be careful not to let their anger and should never appear in the record. Physicians must be careful not to let their anger and frustration with another caregiver - or their unverified subjective opinions - be used as frustration with another caregiver - or their unverified subjective opinions - be used as ammunition in a lawsuit.ammunition in a lawsuit.

If a physician has concerns with a hospital's staff, facilities or equipment, he/she should address If a physician has concerns with a hospital's staff, facilities or equipment, he/she should address it with the hospital's administration or department head and, if necessary, complete an it with the hospital's administration or department head and, if necessary, complete an incident report. It is important to remember that incident reports should never be filed or incident report. It is important to remember that incident reports should never be filed or referred to in the patient's record. referred to in the patient's record.

Most states have adopted legislation protecting incident reports from discovery if they are part Most states have adopted legislation protecting incident reports from discovery if they are part of a hospital's peer review process. However, this protection can be, and often is, of a hospital's peer review process. However, this protection can be, and often is, challenged by plaintiff attorneys when they become aware that an incident report exists. challenged by plaintiff attorneys when they become aware that an incident report exists. This information often is discovered through a review of the medical record. This information often is discovered through a review of the medical record.

In addition, conversations with your insurance carrier, attorney, or the hospital's risk manager In addition, conversations with your insurance carrier, attorney, or the hospital's risk manager should not be documented in the medical record. If you feel the need to document those should not be documented in the medical record. If you feel the need to document those conversations, it should be done on separate paper. Keep in mind, however, that plaintiff conversations, it should be done on separate paper. Keep in mind, however, that plaintiff attorneys frequently ask if you have any other documentation regarding the incident. This attorneys frequently ask if you have any other documentation regarding the incident. This additional documentation is not protected under peer review statutes. additional documentation is not protected under peer review statutes.

FACTSFACTS

The patient, a 60-year-old man, was being treated by an internist for management of post-stroke The patient, a 60-year-old man, was being treated by an internist for management of post-stroke hypertension and occasional chest pain. During a workup, the internist diagnosed an aneurysm hypertension and occasional chest pain. During a workup, the internist diagnosed an aneurysm described in the medical record as an "abdominal aortic aneurysm dilated to approximately 4 cm." described in the medical record as an "abdominal aortic aneurysm dilated to approximately 4 cm." The internist informed the patient that the aneurysm should be rechecked in one year. The internist informed the patient that the aneurysm should be rechecked in one year.

Approximately 14 months later, the patient returned to the internist complaining of left upper quadrant Approximately 14 months later, the patient returned to the internist complaining of left upper quadrant pain. The internist ordered an ultrasound which showed the aortic aneurysm had increased in size pain. The internist ordered an ultrasound which showed the aortic aneurysm had increased in size to 6.3 cm, extending above the renal arteries. A CT scan performed three weeks later showed a to 6.3 cm, extending above the renal arteries. A CT scan performed three weeks later showed a thoracic aneurysm that had increased to 8 cm. The internist informed the patient that he should be thoracic aneurysm that had increased to 8 cm. The internist informed the patient that he should be evaluated by a general surgeon and gave him the surgeon's telephone number. No effort was made evaluated by a general surgeon and gave him the surgeon's telephone number. No effort was made by the internist to contact the general surgeon or to have his office schedule an appointment for by the internist to contact the general surgeon or to have his office schedule an appointment for the patient. the patient.

The patient scheduled an appointment and was seen by the general surgeon three weeks later. A note in The patient scheduled an appointment and was seen by the general surgeon three weeks later. A note in the medical record for this visit stated "no problem." The general surgeon informed the patient that the medical record for this visit stated "no problem." The general surgeon informed the patient that surgery was needed but that he did not perform surgery on thoracic aneurysms. The patient was surgery was needed but that he did not perform surgery on thoracic aneurysms. The patient was given the name and telephone number of a thoracic surgeon and told to make an appointment. The given the name and telephone number of a thoracic surgeon and told to make an appointment. The patient did not schedule an appointment. No effort was made by the general surgeon to contact the patient did not schedule an appointment. No effort was made by the general surgeon to contact the thoracic surgeon, have his office schedule an appointment for the patient or communicate with the thoracic surgeon, have his office schedule an appointment for the patient or communicate with the internist. internist.

In the four months following the patient's visit to the general surgeon, the patient saw the internist twice In the four months following the patient's visit to the general surgeon, the patient saw the internist twice for management of hypertension. There was no documentation in the medical record that either the for management of hypertension. There was no documentation in the medical record that either the aneurysm or the patient's treatment with the general surgeon was discussed.aneurysm or the patient's treatment with the general surgeon was discussed.

Approximately three months after the patient's last visit to the internist, he went to the emergency room Approximately three months after the patient's last visit to the internist, he went to the emergency room complaining of abdominal pain. A CT scan revealed the aneurysm had increased to 9.6 cm. Surgery complaining of abdominal pain. A CT scan revealed the aneurysm had increased to 9.6 cm. Surgery to repair the aneurysm was performed. The patient suffered bilateral lower extremity paralysis and to repair the aneurysm was performed. The patient suffered bilateral lower extremity paralysis and mental deterioration immediately following the surgery, and was hospitalized for eight months. mental deterioration immediately following the surgery, and was hospitalized for eight months.

ISSUESISSUES

Lack of documentation in the medical records maintained by both the internist and general surgeon Lack of documentation in the medical records maintained by both the internist and general surgeon made it difficult to defend this case. In addition, this case demonstrates the problems that can arise made it difficult to defend this case. In addition, this case demonstrates the problems that can arise if follow-up and communication do not occur between referring and consulting physicians, as well if follow-up and communication do not occur between referring and consulting physicians, as well as between physician and patient.as between physician and patient.

OUTCOMEOUTCOME

The case was settled on behalf of the internist and general surgeon. The thoracic The case was settled on behalf of the internist and general surgeon. The thoracic surgeon was dismissed from the case.surgeon was dismissed from the case.

RISK MANAGEMENT LESSONRISK MANAGEMENT LESSON

To ensure proper communication and follow-up, it is important to have a system in place To ensure proper communication and follow-up, it is important to have a system in place to verify that: 1) patients who are referred to a consulting physician actually follow to verify that: 1) patients who are referred to a consulting physician actually follow through with the appointment; 2) a report of the consultant's findings and treatment through with the appointment; 2) a report of the consultant's findings and treatment is received by the referring physician; and 3) there is a clear understanding is received by the referring physician; and 3) there is a clear understanding regarding who will contact and follow-up with the patient. These responsibilities exist regarding who will contact and follow-up with the patient. These responsibilities exist for both referring and consulting physicians. In addition, it is recommended that for both referring and consulting physicians. In addition, it is recommended that referring physicians have their office staff contact the consultant to schedule an referring physicians have their office staff contact the consultant to schedule an appointment for the patient, particularly in urgent situations. This helps ensure that appointment for the patient, particularly in urgent situations. This helps ensure that appropriate information is communicated to the consultant. appropriate information is communicated to the consultant.

When documenting in the medical record, it is vital to include enough detail to enable When documenting in the medical record, it is vital to include enough detail to enable someone reading the notes (even years later) to understand the thought process and someone reading the notes (even years later) to understand the thought process and actions taken. Cryptic notes and generalizations frequently leave doubt regarding the actions taken. Cryptic notes and generalizations frequently leave doubt regarding the intent of the physician or the care provided to the patient. When referring a patient intent of the physician or the care provided to the patient. When referring a patient for a consultation, the reason for the referral should be documented in the medical for a consultation, the reason for the referral should be documented in the medical record and provided to the consultant. The documentation should indicate that the record and provided to the consultant. The documentation should indicate that the patient was informed of their medical condition and the reason/importance for the patient was informed of their medical condition and the reason/importance for the consultation. If the patient is non-compliant in keeping the appointment with the consultation. If the patient is non-compliant in keeping the appointment with the consultant, this should be shared with the referring physician. It also should be consultant, this should be shared with the referring physician. It also should be noted in the medical record.noted in the medical record.

FACTSFACTS

The patient, a 22-year-old pregnant female was living with her parents. She and her The patient, a 22-year-old pregnant female was living with her parents. She and her family had been under the care of a family practitioner; however, the patient had not family had been under the care of a family practitioner; however, the patient had not seen the physician since she was 18 years of age. seen the physician since she was 18 years of age.

At approximately 9:00 p.m. on the night of the incident the patient's mother called the At approximately 9:00 p.m. on the night of the incident the patient's mother called the family practitioner and told him that her daughter was five to eight weeks pregnant family practitioner and told him that her daughter was five to eight weeks pregnant and had been experiencing abdominal pain. The mother testified the physician told and had been experiencing abdominal pain. The mother testified the physician told her to bring the patient to his office the next day, but never mentioned the possibility her to bring the patient to his office the next day, but never mentioned the possibility of an ectopic pregnancy or that the patient should be taken to an emergency room if of an ectopic pregnancy or that the patient should be taken to an emergency room if the pain increased. the pain increased.

The physician testified he told the mother that abdominal pain is not abnormal during The physician testified he told the mother that abdominal pain is not abnormal during pregnancy, but to take her daughter to the emergency room if she got any worse. He pregnancy, but to take her daughter to the emergency room if she got any worse. He said he also told the mother to have the patient see a doctor the next day. said he also told the mother to have the patient see a doctor the next day.

The next morning the mother drove the patient to the hospital, where she was admitted The next morning the mother drove the patient to the hospital, where she was admitted into the emergency room. She was rushed to surgery and a ruptured fallopian tube, into the emergency room. She was rushed to surgery and a ruptured fallopian tube, resulting from an ectopic pregnancy, was discovered. She went into cardiac arrest resulting from an ectopic pregnancy, was discovered. She went into cardiac arrest and died after a period on life support. and died after a period on life support.

The physician did not document the telephone call or his advice in the patient's medical The physician did not document the telephone call or his advice in the patient's medical record. record.

ISSUESISSUES

Because telephone advice/consultation occurs without the benefit of actually observing Because telephone advice/consultation occurs without the benefit of actually observing or examining the patient, there are significant or examining the patient, there are significant liability risks. This case demonstrates the importance of documenting all telephone calls.

OUTCOMEOUTCOME

The jury awarded wrongful death damages against the physician and the hospital.The jury awarded wrongful death damages against the physician and the hospital.

RISK MANAGEMENT LESSONS RISK MANAGEMENT LESSONS

Patients, and others calling on their behalf, may give an inaccurate assessment of the severity Patients, and others calling on their behalf, may give an inaccurate assessment of the severity and/or location of physical complaints. Providing telephone advice can be tricky and and/or location of physical complaints. Providing telephone advice can be tricky and frequently places the physician at risk of a claim if something goes wrong. If the telephone frequently places the physician at risk of a claim if something goes wrong. If the telephone call is not documented, the evidence amounts to the physician's word against the patient's. call is not documented, the evidence amounts to the physician's word against the patient's. To reduce risks:To reduce risks:

Have a standard reply, such as "I cannot diagnose your problem over the telephone." Advise Have a standard reply, such as "I cannot diagnose your problem over the telephone." Advise patients each time they call about the limitations of dispensing medical advice by telephone. patients each time they call about the limitations of dispensing medical advice by telephone. Callers with urgent problems should be directed to an emergency department. Callers with urgent problems should be directed to an emergency department.

Document every after-hours telephone exchange. Include the name of the patient or person Document every after-hours telephone exchange. Include the name of the patient or person calling on their behalf, date, time, specific complaint, advice provided, final disposition of calling on their behalf, date, time, specific complaint, advice provided, final disposition of the call, and referral to other providers or facilities. the call, and referral to other providers or facilities.

If you use dictation in your office, dictate a note as soon as possible while the conversation is If you use dictation in your office, dictate a note as soon as possible while the conversation is still fresh in your mind. still fresh in your mind.

Inform patients in writing about your policies and procedures for handling after-hours calls. Inform patients in writing about your policies and procedures for handling after-hours calls. Include information regarding the types of complaints that can be handled in after-hours Include information regarding the types of complaints that can be handled in after-hours calls. calls.

If you use an answering machine, the message should state that calls will not be returned until If you use an answering machine, the message should state that calls will not be returned until the next day and that patients should go to the emergency room if they have an urgent the next day and that patients should go to the emergency room if they have an urgent problem. problem.

If you use an answering service, maintain logs of telephone calls for future reference.If you use an answering service, maintain logs of telephone calls for future reference.

FACTSFACTS

A patient presented to a general surgeon with an acute onset of A patient presented to a general surgeon with an acute onset of pelvic pain and heavy vaginal bleeding. An ultrasound confirmed pelvic pain and heavy vaginal bleeding. An ultrasound confirmed an ectopic pregnancy on the right side, which the surgeon an ectopic pregnancy on the right side, which the surgeon removed laparoscopically. A laparoscopic exam of the patient’s removed laparoscopically. A laparoscopic exam of the patient’s left tube revealed a complete hydrosalpinx, so the surgeon left tube revealed a complete hydrosalpinx, so the surgeon removed it as well.removed it as well.

ISSUESISSUES

The patient alleged unnecessary removal of the right tube, and The patient alleged unnecessary removal of the right tube, and alleged that the left tube was removed without informed consent. alleged that the left tube was removed without informed consent. Experts reviewing the case expressed concerns over the Experts reviewing the case expressed concerns over the surgeon’s qualifications to conduct the surgery, and were critical surgeon’s qualifications to conduct the surgery, and were critical regarding the removal of the tube on the left side without informed regarding the removal of the tube on the left side without informed consent.consent.

OUTCOMEOUTCOME

The case was settled.The case was settled.


Consent and informed consent are two separate and distinct concepts. Consent is Consent and informed consent are two separate and distinct concepts. Consent is generally recognized as a patient signing a name to a form, or verbally agreeing to a generally recognized as a patient signing a name to a form, or verbally agreeing to a treatment plan or a procedure. Informed consent is a communication process that treatment plan or a procedure. Informed consent is a communication process that leads to shared decision-making by the physician and patient. Informed consent leads to shared decision-making by the physician and patient. Informed consent accommodates both patient autonomy and the physician’s responsibility for accommodates both patient autonomy and the physician’s responsibility for assisting the patient in developing and maintaining treatment plans. Physicians are assisting the patient in developing and maintaining treatment plans. Physicians are required to obtain informed consent from patients prior to treatment.required to obtain informed consent from patients prior to treatment.

Research shows that most patients want both information and advice from their Research shows that most patients want both information and advice from their physicians. The communication process should be a conversation in which the physicians. The communication process should be a conversation in which the patient obtains information, asks questions and gives information back to the patient obtains information, asks questions and gives information back to the physician. Once the patient and physician agree on a treatment plan, procedure or physician. Once the patient and physician agree on a treatment plan, procedure or medication regime, the physician is duty-bound to carry out the patient’s wishes in medication regime, the physician is duty-bound to carry out the patient’s wishes in instances other than emergency situations. If the medical conditions or instances other than emergency situations. If the medical conditions or circumstances change in any way, the physician must again review and discuss the circumstances change in any way, the physician must again review and discuss the plan with the patient.plan with the patient.

Medical record documentation should reflect the followingMedical record documentation should reflect the following::

A summary of informed consent conversations with the patient A summary of informed consent conversations with the patient

The diagnostic or therapeutic treatment of procedure recommended The diagnostic or therapeutic treatment of procedure recommended

The benefits of treatment The benefits of treatment

Potential significant side effects and complications of treatment Potential significant side effects and complications of treatment

Alternative forms of treatment, including risks and benefits, and Alternative forms of treatment, including risks and benefits, and

The risk of non-treatment The risk of non-treatment

FACTSFACTS

The patient came to a general practitioner with a history of a left lung The patient came to a general practitioner with a history of a left lung resection for cancer years prior. As part of his initial work-up, the resection for cancer years prior. As part of his initial work-up, the physician obtained a chest x-ray, which was interpreted by the co-physician obtained a chest x-ray, which was interpreted by the co-defendant radiologist as positive for chronic obstructive pulmonary defendant radiologist as positive for chronic obstructive pulmonary disease and bilateral interstitial fibrosis. The general practitioner later disease and bilateral interstitial fibrosis. The general practitioner later maintained that the patient had refused a CT scan, which he recommended maintained that the patient had refused a CT scan, which he recommended at that time. The charting did not clearly support this position. A year later, at that time. The charting did not clearly support this position. A year later, a repeat chest x-ray was positive for a nodular density in the right lung a repeat chest x-ray was positive for a nodular density in the right lung apex. Although the physician again maintained that he discussed further apex. Although the physician again maintained that he discussed further work-up and the patient again refused, there was no documentation in the work-up and the patient again refused, there was no documentation in the chart of such a discussion or refusal. Several months later, the patient chart of such a discussion or refusal. Several months later, the patient sought treatment with another physician and was diagnosed with an sought treatment with another physician and was diagnosed with an inoperable lung lesion on the right side.inoperable lung lesion on the right side.

ISSUESISSUESThe patient alleged that the delay in following up on the positive X-ray The patient alleged that the delay in following up on the positive X-ray findings allowed the tumor to grow and become unresectable. Although findings allowed the tumor to grow and become unresectable. Although experts differed on whether the delay actually resulted in a worsened experts differed on whether the delay actually resulted in a worsened prognosis, the physician's lack of clear charting made the case difficult to prognosis, the physician's lack of clear charting made the case difficult to defend on liability grounds.defend on liability grounds.

OUTCOMEOUTCOME

The case was settled.The case was settled.


No jury can ever know what actually happened during a medical event. The medical No jury can ever know what actually happened during a medical event. The medical record provides the best evidence of contemporaneous events. If the patient's record record provides the best evidence of contemporaneous events. If the patient's record appears to require some action to protect the patient and that action is not taken, the appears to require some action to protect the patient and that action is not taken, the record can assist the plaintiff in efforts to establish negligence.record can assist the plaintiff in efforts to establish negligence.

Informing the patient of further diagnostic testing accommodates patient autonomy and Informing the patient of further diagnostic testing accommodates patient autonomy and the clinician's responsibility to the patient in maintaining treatment plans. The the clinician's responsibility to the patient in maintaining treatment plans. The medical record should detail the content of the clinician's communication and medical record should detail the content of the clinician's communication and recommendations to the patient. The patient always has the right to reject the recommendations to the patient. The patient always has the right to reject the clinician's recommendations. However, the patient's refusal is a "red flag" which clinician's recommendations. However, the patient's refusal is a "red flag" which warrants the clinician's attention to both further communication and documentation warrants the clinician's attention to both further communication and documentation practices.practices.

The clinician has a duty to adequately disclose to the patient the potential risks and The clinician has a duty to adequately disclose to the patient the potential risks and consequences of refusing further testing recommendations. Once again, the medical consequences of refusing further testing recommendations. Once again, the medical record must reflect the content of the discussion. The clinician should also send the record must reflect the content of the discussion. The clinician should also send the patient a letter reiterating concerns about the treatment plan. A copy of the letter patient a letter reiterating concerns about the treatment plan. A copy of the letter should be attached to the patient's record. It is a good idea to send such letters should be attached to the patient's record. It is a good idea to send such letters registered, return receipt requested, and to have the returned receipt placed in the registered, return receipt requested, and to have the returned receipt placed in the patient's record. this can serve as evidence of receipt of the letter by the patient and patient's record. this can serve as evidence of receipt of the letter by the patient and further indicate the effort and concern of the physician for the patient.further indicate the effort and concern of the physician for the patient.

The clinician's later description of unrecorded factors that actually determined actions, The clinician's later description of unrecorded factors that actually determined actions, and the patient's inaction, may be viewed by the jury (or experts) as a purely and the patient's inaction, may be viewed by the jury (or experts) as a purely defensive action, with no credible supporting evidence. In a credibility contest, defensive action, with no credible supporting evidence. In a credibility contest, judges and juries will often believe the patient or family member over the health care judges and juries will often believe the patient or family member over the health care provider.provider.

the importance of documentation: the medical and legal issues samer kanaan, m.d

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