At a glance

  • The physician testified that he had advised the patient to see a cardiologist, but the man had neglected to do so. There was no record in the medical chart of these recommendations.
  • Jurors tend to lump negligent care and damages together without carefully considering the link between the two.
  • Direct communication with the family, especially when a patient decides not to follow medical advice, may be helpful.

Mr. P graduated from a physician assistant program in the Northeast and joined a large suburban family practice. Although he had been a good student and left school with a broad range of expertise, he realized that there were many situations that necessitated specialty referral. He was never shy about recommending specialist care if he thought it appropriate.

A case in point was a 38-year-old man who had undergone surgery for a dissecting aneurysm 10 years earlier. Since the surgery, he had attended Mr. P’s clinic regularly to have his BP medication monitored and his progress assessed following a car accident that required a short hospital admission. He was usually seen by a family physician, who was aware of his previous surgery for dissecting aneurysm. The physician later testified that he had advised the patient on several occasions to see a cardiologist to have his heart checked, but the man had neglected to do so. However, there was no record in the medical chart of these recommendations.

One day, the patient came to the clinic complaining of shortness of breath. His usual physician was not in, and he was seen by Mr. P. Following a thorough history, Mr. P examined the man’s heart and lungs and found him to be in heart failure. He advised the patient to go either to the hospital or see a cardiologist immediately. Instead, the man waited for three weeks while his symptoms worsened. He eventually wound up in the ER with severe dyspnea and died of heart failure several days later.

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The family lawyer was asked to administer the patient’s modest estate. The possibility of a malpractice suit against Mr. P, his supervising physician, and the clinic was soon raised. When the patient’s brother, ex-wife, and 13-year-old son agreed to pursue the case, the estate lawyer referred them to a plaintiff’s lawyer. According to the court papers delivered to Mr. P, the basis of the suit was that the patient had not been referred to a cardiologist (who would have somehow healed recurring dissecting aneurysm and consequent heart failure).

During discovery, the lawyers made an interesting finding in the patient’s chart. The entries written by the physician noted an abnormal ECG as well as comments on the finding but no recommendation to see a cardiologist. Mr. P’s entries contained the reverse—no ECG (it had been ordered by the physician) but a comment on the recommended referral. The plaintiff’s lawyer used expert testimony to argue that the physician failed in his responsibility to make the referral.

After months of discovery and depositions, followed by an unsuccessful attempt at settlement, the case came to trial. The defense lawyers argued that the recommendation for cardiology referral had been made, but it was not clear by whom. The plaintiff’s lawyer contended that the physician should have made the referral and pointed to the lack of reference to it in his medical notes as proof that he had not done so. Mr. P took the witness stand and worked his way through his notes. When he came to the entry documenting the referral (which merely read “card. ref.”), he drew a blank as to who had suggested the referral and what it meant. The plaintiff’s lawyer suggested that Mr. P’s note merely documented that the patient had asked for a referral but never received one. “If that had been the case,” Mr. P fired back, “it would have read ‘card. ref.?’ ” The physician appeared next to testify with respect to the high mortality of the patient’s condition (dissecting aneurysm) even after surgical correction.

In the end, the jury ruled that the physician had been negligent, but the negligence was not a substantial cause of the patient’s death.

Legal background

Theoretically, a plaintiff’s lawyer must prove not only that the patient was injured, but that the injury was caused by substandard care. In practice, jurors tend to overlook the legal niceties and lump negligent care and damages together without carefully considering the link between the two. The jury in this case took the time to consider the damages and causation issues separately, leading to a “bifurcated” verdict of damages but no causation, a rarity in the world of malpractice litigation.

The rules of evidence allow medical providers to interpret their chart entries. While this allows clinicians to use personal abbreviations and codes (within limits), using conventional abbreviations has much more credibility. The moment of truth comes when the provider is asked to reconstruct what happened during the patient visit from the abbreviated notes. This, and not the impractical advice to “document everything,” should be the test of adequate note-taking.

Risk-management principles

Every practice has patients who suffer from chronic conditions with poor statistical outcomes. The patients usually accept their status with equanimity, provided that their clinicians explain the facts surrounding their condition. The problem is that many patients do not share these insights with their family. The family’s questions and anger frequently lead to a malpractice suit. Direct communication with the family, especially when the patient decides not to follow medical advice, may be helpful. In Mr. P’s case, it was not clear who should have been informed. The next best alternative is to note the referral carefully in the chart.

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.