Malpractice Case: Don't Let Your Own Words Get You Into Trouble

Gordon T. Ownby


August 07, 2018

Medscape Editor's Key Points:

  • Your recommendations for patient care need to be consistent, whether you're speaking to the patient or to the patient's primary care physician.

  • If your care plans are concrete enough for you to write them to another treating physician, it's important that you communicate that message to the patient.

  • If you do provide your treatment recommendation to the patient, make sure you document that you have done so.

Be Sure to Pay Attention to Your Own Words

Physicians in litigation have a hard enough time when faced with expert witnesses hired by an attorney to find fault with the care given to a patient. Those difficulties can multiply when the doctor's own words help to articulate a plaintiff's case.

A 54-year-old electrician was referred by his primary care physician to Dr GS, a general surgeon, for rectal bleeding. Dr GS examined the gentleman and noted internal and external hemorrhoids, but no blood.

Dr GS noted that the patient "should have initial colonoscopy," which, according to his practice, meant that he delivered that message to the patient. A week later, Dr GS wrote a letter to the patient's internist, thanking him for the referral and recommending that the man should have a colonoscopy, stating, "I would insist on that if the bleeding continues after the hemorrhoid treatment."

Some 3 weeks after his initial exam, Dr GS performed rubber-band ligation of two internal hemorrhoids. When bleeding persisted and a follow-up examination showed no clinical change, Dr GS performed a stapling procedure the next month.

In subsequent visits over the next 2 months, the patient complained of tailbone and rectal pain. An external hemorrhoid persisted, as did some bleeding. Another month on, the pain had resolved, but the patient had a palpable protruding hemorrhoid, for which Dr GS recommended a banding ligation. The patient was still bleeding occasionally.

The patient did not return to Dr GS.

Seven months later, the patient went to the emergency room after a week of rectal bleeding. After admission, a colonoscopy showed an obstructing sigmoid colon mass that was 20-28 cm from the anal verge. Subsequent surgery could not resect the entire mass; one lymph node was positive for metastatic carcinoma.

The patient's discharge diagnosis was stage IV colon cancer, with metastatic disease to the liver.

In the subsequent lawsuit over Dr GS' care of the patient, the opposing attorney's criticism of a decision to not perform a colonoscopy at the same time of the initial hemorrhoid procedure looked quite rebuttable.

But the lack of any documented recommendation for the colonoscopy after the first procedure contrasted with Dr GS's own words months earlier when he wrote to the primary care physician that he would "insist on" a follow-up colonoscopy if the patient's bleeding continued. That bleeding did continue, though no notes communicating that to the primary care physician appeared in the record. Dr GS and the patient resolved the dispute without going to trial.

The lesson here is not that a physician should self-edit the treatment-appropriate remarks that they put into their medical records. Rather, the takeaway is that if a physician's sentiments for a plan coalesce enough to put into writing, he or she had better be sure to follow up on that plan. Otherwise, you are just writing the script for a plaintiff attorney's opening statement.

This case comes from Medicine on Trial, originally published by Cooperative of American Physicians, Inc., to provide risk management lessons from litigated case histories. Originally titled "Be Sure to Pay Attention to Your Own Words."


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