Mr. J considered himself fortunate to get a job in the specialty of his choice right out of nurse practitioner school. Through a combination of personal contacts and good academic record, he landed a position at a large eye institute in the Northeast. He knew other equally qualified graduates in his class who were still hunting for jobs or forced to accept positions out of their preferred specialty. While Mr. J enjoyed assisting at surgery and did not mind taking care of the numerous patient callbacks, a possible oversight mired him in a multimillion-dollar malpractice case.

The patient was a 52-year-old warehouse forklift operator who came to the eye institute’s ER because of pain and sudden loss of vision in his left eye. After performing an examination, the eye surgeon diagnosed a detached left retina. The patient had already lost most of the vision in his right eye in a prior accident. Surgery was performed that day to reattach the retina. After being discharged with considerable vision improvement, the patient was given instructions to follow up one week later and to call the eye clinic in the event of increased pain, loss of vision, or secretion from the eye.

When Mr. J got out of surgery the next day, he found almost 30 callbacks waiting for him, including one from the forklift operator describing increased pain and some watery discharge from his left eye. After a brief conversation (the contents of which would be disputed later), Mr. J called the pharmacy and prescribed pain medication (acetaminophen with codeine). Four days later, the patient came in for a routine follow-up visit. The ophthalmologist discovered that he had endophthalmitis, an infection of the interior of the eye, which required urgent treatment. Despite high-dose antibiotics, the infection caused partial loss of vision in the left eye. Combined with the prior loss of vision in his right eye, the patient was now severely impaired. He consulted a plaintiff attorney several weeks later. The attorney called for the chart, had it reviewed, and filed suit against Mr. J, the eye surgeon, and the clinic.

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The case proceeded erratically over the next two years. By the time discovery gave way to depositions, Mr. J had almost forgotten the details of the case. One thing in particular remained clear, however. He had advised the patient to return to the clinic, but the patient preferred a prescription for pain medication and had refused. He repeated this assertion in his deposition, and a skeptical plaintiff lawyer challenged him to produce a record of the conversation. Although Mr. J recalled making notes at the time of the call, he could not find them anywhere. They were definitely not in the chart, a fact which the plaintiff lawyer was only too happy to emphasize repeatedly.

Experts testified for both sides at trial, but the case came down to Mr. J’s word against the patient’s. Mr. J continued to insist that his patient had refused his advice to come to the hospital and be examined. The patient swore that Mr. J had merely asked him a few questions before calling in a prescription for pain medication (a fact corroborated through the pharmacy’s records). During cross-examination, the plaintiff lawyer spent a considerable amount of time on the lack of chart notes concerning Mr. J’s recommendation to the patient. The attorney also presented witnesses who testified that the patient had accumulated $39,000 in medical expenses. Furthermore, his loss of vision had cost him promotions at work to the tune of an estimated $350,000.

The jury retired to consider all the testimony they had heard and came back with a $6-million verdict in favor of the plaintiff.

Legal background

Malpractice cases frequently turn on the differing testimony of the provider and the patient with regard to what was said on certain occasions. If there is a notation in the chart, even an obscure hieroglyph that needs to be interpreted by the provider at trial, the jury will usually accept it at face value. Problems arise when there is no mention of the patient encounter at all or the records have been lost or misplaced. When this happens, the attorneys will often call the jury’s attention to the circumstances surrounding the encounter (the acetaminophen with codeine prescription called in by Mr. J in this case) to assess the credibility of the dueling witnesses.

The damages awards in jury verdicts can be classified in various ways. Categories commonly used by lawyers are medical bills, loss of wages, repair bills (in auto accidents), loss of consortium (the damage to a spouse when the partner is injured), and pain and suffering. In some cases, juries may award punitive damages. Economists often discuss economic (actual losses) and noneconomic (pain and suffering) damages. There are some interesting variations, such as including medical bills as damages even though they have already been paid by insurance or written off by the hospital. Similarly, loss of future earnings are largely speculative and assume promotions and pay raises that may never have come to fruition. But the most contentious (and expensive) type of damage is “pain and suffering,” since jurors can let their imaginations run free. A rule of thumb states that economic to noneconomic damages should reflect a ratio of 1:5. In this case, the jury abandoned that rule and found $400,000 in economic damages before awarding $5.6 million in pain and suffering.

Risk-management principles

Patient callbacks are a high-risk area for clinicians for a number of reasons. First, the information provided by the patient may be incomplete, inaccurate, or even dead wrong. Second, the callback usually takes place at the end of the day when the clinician is tired and may not be operating at peak level. Also, the provider is making decisions based on incomplete information, since a physical exam is not possible. Finally, there are more time constraints on a callback than on an office visit.

Most jurors can forgive errors if the provider is able to convince them that he or she took note of what the patient was saying and acted appropriately, even if the result turned out poorly. The provider’s best friend in a callback-based malpractice suit is notes taken during the call. Despite the difficulties of taking good notes (e.g., time limitations, unavailability of the chart), the effort to have something in the chart for later reference is worth it. Mr. J testified that he took notes of the conversation in accordance with clinic policy, but the notes somehow got misplaced and never made it to the chart. This was a major factor in the megaverdict that followed.

An effective callback system should be designed to identify  high-risk patients and ensure that they return to the clinic for additional assessment. One way of achieving this, especially in high-volume clinics with standard clinical situations, is to have a preset protocol for the questions to be asked by the provider. Even in family practice, where the clinical situations are numerous and varied, certain questions — such as whether the patient is improving or getting worse — can be revealing. Assessing patients over the phone is challenging, even for experienced clinicians. It is made more difficult if the provider does not know the patient personally. Despite the difficulties, any callback is better than none at all from a risk-management perspective. Many clinical problems can be avoided through efficient use of this clinical tool.