Five years ago, Ms. B became a physician assistant. Upon graduation, she accepted a job with a general-practice clinic in the same city in which she had gone to school and met her husband. When her mother developed breast cancer, she moved her family back to her hometown to help out. She became the first PA hired in a small, two-physician practice.

One of her first patients was a 65-year-old man who had been coming to the clinic for more than 20 years. This time, he presented with a severe cough. He had a smoking history of 20 years but had not smoked in the past 10 years. Because the sputum was purulent, his cough had been treated earlier with antibiotics. The patient’s family later contended that the cough never went away but continued, eventually resulting in workup and diagnosis of lung cancer. During his last visit, his physician diagnosed influenza and head congestion and treated the infection with another round of antibiotics.

Ms. B was assigned to monitor the patient’s progress. She noted that the cough continued and recommended a chest x-ray, which showed a mass in the right lower lobe. This turned out to be a stage 2 squamous cell carcinoma. The patient underwent right pulmonectomy and became asymptomatic, with limited exercise tolerance for the next three years. At this point, however, a follow-up chest x-ray showed a mass in the remaining left lung. The patient died several weeks later during attempted resection of the newly discovered mass.

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His family consulted a plaintiff lawyer who called for the chart, had it reviewed, and filed suit against the treating physician. Ms. B was not named in the lawsuit but became involved through her employment at the clinic. She collected the paperwork requested by the plaintiff lawyer in the initial discovery and was later interviewed under oath regarding her contact with the patient. The physician was asked to reconstruct the patient’s office visits, including what was said on various occasions. The poor quality of his notes made this difficult. However, he was able to recall that the patient’s cough had resolved with antibiotic treatment.

The experts delivered their testimony next. The plaintiff expert testified that given the patient’s smoking history, the family physician should have ordered a chest x-ray during the first visit and another during the second visit because of the long history of persistent cough. The defense expert countered that since the patient’s cough had resolved after the course of antibiotics, a chest x-ray was not indicated until several years later, when it was finally requested by Ms. B. It was only at that point that the patient reported a persistent cough.

Given the proper jury, the plaintiff lawyer felt the case was worth several million dollars, but the defense offered only $150,000. Settlement negotiations failed, and the case went to trial. The trial was a replay of the deposition testimony, and Ms. B was soon on the stand reconstructing her office visits with the patient for the benefit of the jurors. Because her clinical notes were relatively thorough, she was able to testify with confidence that the patient’s cough had returned shortly before his visit with her. She had treated his bronchitis and ordered a chest x-ray when his cough did not resolve. Ms. B expressed sadness at the subsequent diagnosis of lung cancer and grieved for the family and their loss, but she felt she had done nothing wrong. She also testified that her supervising physician had acted appropriately. Her testimony was followed by that of the physician, who argued that the case had been handled correctly and that the patient’s cough had subsided after treatment on the first visit. The fast-growing lung carcinoma had probably occurred in the time between office visits. After listening politely to the experts, the jurors spent 12 hours in the jury room before emerging with a verdict for the physician and Ms. B.

Legal background

Malpractice litigation has become a free-for-all battle with millions of insurance dollars at stake. Most jurors are conscientious and try to apply the law as they understand it through the judge’s instructions, but confusion over expert testimony and the complexities of modern medicine usually force them to fall back on first impressions. In this case, Ms. B provided a calm and rational account of her interaction with the patient by using her medical notes to reconstruct the visits and the management of the case as it progressed. She came across as a caring, conscientious, and competent provider, which was reflected in the final outcome of the case.

Risk-management principles

Stepping into a practice can be a difficult transition. The new provider often is asked to take over the care of existing patients who have a long and complex history. Although time is precious in today’s medical offices, it is a good idea to review the prior history and confirm the main points with the patient before turning to a new problem. Ideally, the prior provider will make a “transfer summary” for each chart, but new providers are more frequently required to fend for themselves. In Ms. B’s case, the previous clinician was still available to discuss the case and provide important information, such as prior smoking history.

Ms. B’s testimony was a major factor in saving the case for the physician, whose medical notes were incomplete and unimpressive. Newer PAs and nurse practitioners tend to keep more complete medical records than their physician counterparts. This is not a demand for completeness in documentation (the realities of modern medicine intrude on rigorous note taking), but notes that can be interpreted by the provider to reconstruct the interview are helpful in avoiding later disputes over what was said and done.