Legal Pearls: The Importance of Documentation
Dr P is a 42-year-old primary care physician with her own practice. She has a new referral patient, Mr D, who is a 49-year-old truck driver experiencing rectal pain and bleeding during bowel movements. After a complete medical history and physical examination, Dr P gives her diagnosis and suggests further testing.
She only documents the visit, the findings, and the diagnosis.
Several years later, Dr P is sued for medical malpractice.
Was Dr P negligent?
(Answer and discussion on next page)
Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association, and editor of Pharmacy Times.
According to a 2011 article published in the New England Journal of Medicine,1 by the age of 65, three-quarters of physicians in low-risk specialties and 99% of those in high-risk specialties will be sued for medical malpractice. Many cases succeed or fail based on how well clinicians communicate, document, and follow up with patients and specialists. This month, we look at one clinician’s story to see what went wrong.
Clinical Scenario
Dr P was a 42-year-old primary care physician with her own practice. Although she had only had the practice for 5 years, there was no shortage of patients, many of whom were referrals from other patients. One such referral was Mr D, a 49-year-old truck driver who had been referred by his wife, a current patient of Dr P’s. Mr D’s wife made an appointment for her husband after he began experiencing rectal pain and bleeding during bowel movements.
The patient seemed uncomfortable discussing his problem, but he reported that he had been bleeding intermittently during bowel movements for the past 2 months. When pressed, he told the physician that the blood was bright red, and that at times it seemed like the toilet was full of blood.
Mr D had a past medical history of depression, anxiety, heavy use of alcohol, and hypertension, as well as a family history positive for colon cancer and cardiac disease. The patient denied being a smoker.
After their discussion, Dr P informed the patient that she would now perform a physical examination, including a digital rectal examination.
“Couldn’t we just skip that part,” asked Mr D, hopefully. “Is it really necessary?” The patient seemed nervous and ill at ease.
“I’m sorry,” said Dr P, “but this is absolutely necessary. Don’t worry—it will be very quick, I promise.”
After a few more reassuring words, Dr P convinced the patient.
The digital examination was negative for any tumors or tears, and Dr P gave the patient a diagnosis of bleeding due to internal hemorrhoids.
“I would advise you to schedule a colonoscopy to rule out anything else,” said the doctor. “I can give you a referral to a gastroenterologist who is on your plan.”
The patient adamantly refused any referral and told the physician that he was not interested in a colonoscopy. Dr P gave him a prescription for suppositories and a hemorrhoid cream and scheduled the patient to return in 3 weeks for a follow-up appointment.
The physician documented the visit, the examination findings, and the diagnosis, but she neglected to note that she had advised the patient to get a colonoscopy, and that he had refused.
At the follow-up examination, the patient reported that the rectal pain and bleeding had ceased, and that he had not noticed any blood in his stools. Dr P did not suggest a colonoscopy again.
Over the next year and a half, Dr P saw the patient 8 more times for various other complaints and minor illnesses. The patient never relayed any concerns about continued rectal pain and bleeding, and Dr P did not ask, nor did she have further discussions with the patient regarding a colonoscopy.
Approximately 20 months after Mr D’s first office visit, his wife made an appointment for him to have a colonoscopy due to his continued rectal pain and bleeding. During the procedure, the gastroenterologist found a tumor, and the patient later received a diagnosis of differentiated metastatic colon adenocarcinoma. Mr D died 1 year after receiving the cancer diagnosis.
After a time, Mr D’s wife sought the counsel of a plaintiff’s attorney, and asked whether the attorney thought there was a malpractice case against the physician. The attorney hired several medical experts to read over the records. The experts pointed out that the records did not indicate that Dr P had ever recommended a colonoscopy. They further pointed out that there were no notes indicating that she had followed up with the patient at later appointments to determine if he still had rectal bleeding, or to recommend a colonoscopy. The attorney told Mr D’s wife that he would take the case, and he filed a medical malpractice lawsuit against Dr P.
When Dr P received notice that she was being sued, she contacted her insurance company, who provided her with a defense attorney. This attorney also hired medical experts to look at the patient files, and these experts also noted the same issues.
“Why didn’t you suggest that the patient have a colonoscopy?” asked the attorney.
“I’m sure I did,” replied Dr P. “I recall that the patient strongly told me that he wouldn’t consider it, and that I shouldn’t bring it up again.”
“But that’s not reflected in the medical records,” said the attorney.
“I guess I forgot to write it down,” replied Dr P. “I have a busy office.”
The attorney explained to the physician that she was being sued for failure to properly evaluate and document, failure to perform adequate and appropriate follow-up, failure to order appropriate treatment, and failure to refer a patient to a specialist.
“Without any documentation showing that you recommended a colonoscopy or followed up with the patient, we’re in a weak position to defend this case,” said the attorney. “I suggest we have a settlement discussion.”
On the advice of her defense attorney, Dr P settled the case out of court for an amount within the limits of her liability policy.
What's the "Take-Home"?
Dr P made several errors in both communication and documentation. The medical experts who reviewed the case were critical of Dr P’s failure to properly document and follow up about the patient’s history of rectal bleeding and pain, thus allowing the colon cancer to metastasize.
What could she have done to reduce her risk of being sued? She should have documented all patient-related discussions, as well as any treatment orders or recommended tests or referrals. She should have clearly noted the patient’s nonadherence to the suggestion of a colonoscopy, and his refusal to accept a referral. She should have noted that she warned the patient that not adhering to her recommendations could result in a worsening of his symptoms.
While you can’t force a patient to undergo a screening procedure, you can protect yourself from legal risk by noting that you advised it, that the patient refused, and that you warned the patient of the possible risks associated with refusing. Consider informing the patient in writing that nonadherence with treatment advice could result in a poor outcome.
Bottom line—a complete health information record is the best legal defense.
Reference:
1. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636.