An off-the-cuff remark can signal a condition that requires attention.

Dr. M, 45, had been in family practice for 12 years. While he was most comfortable treating adults with chronic conditions, such as diabetes, hypertension, CAD, and hyperlipidemia, his patients came with the usual variety of complaints. A woman with an atypical presentation of breast cancer was responsible for taking Dr. M to court.

The 46-year-old patient had been seeing Dr. M for several years for various acute illnesses and allergies. On this occasion, she was suffering from an upper respiratory infection (URI). Dr. M examined her carefully, prescribed symptomatic treatment for her acute illness, and was about to conclude the interview when the patient hit him with, “By the way, Doctor.…” She said that for the past week she had noticed a discharge and crusting around her left nipple and that she believed it was caused by irritation from her bra.

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Dr. M regrouped. Her remark meant the patient would have to undress, put on an examination gown, and be evaluated with the nurse present—another 20 minutes out of a busy day—and he was behind already. Dr. M sighed and went on to his next patient while the woman prepared herself for the “by the way” examination. When he returned, Dr. M found a crusted rash on the left nipple. He prescribed 1% cortisone cream and advised the woman to return if the rash did not heal in a week or so.

Six months later, Dr. M was startled by a request from a plaintiff’s lawyer for medical records relating to the patient. He asked his office nurse whether she had heard anything through the grapevine. The nurse said that she had heard the patient had had a radical mastectomy and was receiving chemotherapy for carcinoma of the breast. A chill ran down Dr. M’s back.

He reviewed his records, which described the crusting on the nipple, and saw this entry: “RTC if not impr 1 wk.” In his subsequent deposition and testimony in front of a jury, he would interpret the notation to mean: “Return to clinic if not improved in one week.” He’d also note from the records that the patient had not returned.

As Dr. M feared, a month after the call for records, the plaintiff’s lawyer filed a lawsuit against him for malpractice. The court papers alleged “flagrant substandard care that caused severe damages to [the patient].”

Expert witnesses for both the plaintiff and the defense were soon involved, testifying to directly opposite views of the case. The plaintiff’s expert said that if Dr. M had suspected Paget’s disease of the nipple and referred the patient to a specialist at that point, she would have been saved a radical mastectomy, requiring only a quadrant resection of the breast or a simple mastectomy instead. The defense expert testified that because of the natural history of Paget’s disease of the breast, the probable outcome would have been the same, even if Dr. M had made the diagnosis on first presentation.

Despite several attempts to reach a settlement, the case proceeded to trial almost two years after it was originally filed.

At the trial, the patient testified about learning she had breast cancer and her decision to have a radical mastectomy. When the defense lawyer asked, “Why didn’t you return to the clinic as instructed by Dr. M?” she answered, “I don’t remember his saying that.”

That statement turned the rest of the trial into a credibility contest. In the end, the clinical notes won out. The patient was awarded $135,000 with a 50% comparative fault that reduced the award by half. Dr. M returned to his practice, newly aware of the importance of thorough clinical notes in his risk-management program.

Legal background

Juries are impressed with medical records. The clinical chart, with its colored tabs, filing numbers, and coding bars, takes on a mystic aura that transfers to the courtroom as having the credibility of holy writ.

Any testimony that contradicts the clinical chart is viewed with great suspicion. Tampering with the chart is an eccle-siastical violation. On the other hand, testimony that is consistent with the chart entries has the force of official credibility, even when the entries have to be interpreted for the jury by the defendant clinician.

Such experiences with juries are the basis for the common advice from risk managers and lawyers to “chart everything,” even though this approach is wildly impractical in this era of time constraints and productivity pressure on clinicians. A workable compromise is to chart accurately and in sufficient detail so that you can reconstruct the clinical visit, if necessary, from the notes.

Protecting yourself

“By the way” questions are responsible for a disproportionate number of malpractice claims, since the clinician’s response to them is usually considerably less thorough than it is to the presenting complaint. You can expect these pesky last-minute questions from perhaps one or two patients a day.

There are several possible responses, none of which is completely satisfactory. You can attempt to answer the question on the fly and risk that you don’t understand the question well or that the patient won’t understand the answer. You can ask the patient to schedule another appointment, allowing a full time slot and enough structure to deal with the problem effectively. Or you can take Dr. M’s approach and return to the patient after seeing several others, in essence treating the patient’s “by the way” complaint as a new appointment immediately.

It takes considerable psychological strength to get the chart, reopen it, and start a new entry when your mind is already on the next patient or on some urgent interruption that just occurred. It’s particularly difficult if you work with an electronic record you have already closed down. Just remember that some entry is better than none, as long as it is sufficiently detailed to reconstruct the clinical encounter some time after.