Episode 026: Care Off the Record

Speaker 1: You are listening to Your Practice Made Perfect; support, protection, and advice for practicing medical professionals. Brought to you by SVMIC.

Brian: Hello and welcome to today's podcast. My name is Brian Fortenberry. Today we're going to be looking at another closed claim, and taking the look at how SVMIC I was able to help a physician in a situation defend a case. And with me to discuss that today is attorney Zynthia Howse. Zynthia, welcome.

Zynthia: Thank you. Glad to be here.

Brian: Before we get into the case, and get into our discussion, tell our listeners a little bit about yourself.

Zynthia: Well, I am a native Nashvillian and currently living in Memphis, Tennessee.

Brian: There's not many native Nashvillians around anymore.

Zynthia: I know.

Brian: Am I right?

Zynthia: And I miss my hometown. And I've been with State Volunteer for almost 19 years next month, and I've had the fortunate opportunity to manage medical liability claims and I've enjoyed it tremendously.

Brian: Well, it is wonderful to have you with us today. And this is going to be an

interesting discussion and question time. Before we really get into that, let me read a little bit of a background so our listeners will know exactly what's going on with this case. A female infant was seen by her pediatrician for routine initial well baby visit, which included immunizations. The exam was unremarkable, and the child's chart was marked indicating that all immunizations had been administered. Later during a follow up office visit, the child was seen by the same clinic and noted to have received all necessary vaccines. The parents were instructed to return in four weeks. Subsequently, the baby was seen by the same clinic a third time, but treated by a different healthcare provider. It was noted that PCV13 had not been administered previously. The child had an elevated temperature and an elevated white blood cell count. The child was sent to the hospital for lab work, and was subsequently diagnosed with pneumococcal meningitis and septic shock.

As a result, the child was admitted to ICU. She had seizure activity and required intubation. And after a month long admission, the child was diagnosed with a seizure disorder and significant development delay. The parents filed a medical malpractice lawsuit against the pediatric clinic, and it's physicians alleging negligence for failing to immunize the child, and failing to accurately chart the fact that the immunizations were not given. Zynthia, this is a sad story for certain here. What was the outcome of this particular case?

Zynthia: In this particular instance, it was necessary for us to settle this claim.

Brian: It sounds like initially that the child's chart was marked that all these immunizations had been administered. So what happened there?

Zynthia: Well, the chart was documented that the vaccine have been given. However, once the child became ill and an internal investigation took place after having the child transferred to the hospital, it was determined that the chart was not properly documented. So there was an internal investigation, one with questioning the medical assistant who had documented the chart.

Brian: Okay.

Zynthia: And then checking the records based on the inventory of vaccines in the office. And then it was determined that on the particular day that child was seen and the chart was documented, as the vaccine have been given. The clinic was actually out of the vaccine.

Brian: Okay.

Zynthia: And after speaking with the medical assistant, she confessed that yes, I wrote that down. I told the parents we were out and to bring the child back in a few days, but unfortunately she did not go back, correct the chart, and so subsequent providers had no knowledge of that mishap.

Brian: So Zynthia, with that information then, and knowing that that was a mistake in the record keeping. Why did we end up having to settle this case?

Zynthia: Well, this was one of just a unfortunate circumstance. It was an honest mistake, a lesson learned. Now, once we determined that the mistake had been made and the standard of care had not been met for documentation, we still went steps further, because less than optimal outcome does not always equate to negligence. And sometimes you can defend a claim on causation.

Brian: Okay.

Zynthia: So we wanted to make sure we still could not defend this claim. One, the parents were told to bring the child back for the vaccine, which they did not do. And we wanted to make sure that the virus the child contracted was actually one that would have been covered by the vaccine anyway, had the child and given the vaccine. So we went through serial typing and various lab work tests, and it was determined that the virus the child contract was one that would have been covered by the vaccine, had the child received it. And so we had to face the reality that had this vaccine being given, then the outcome would have been totally different, and the child possibly would have been a healthy child going forward. And so we had to accept that, do the right thing, and settle this claim.

Brian: So in this scenario, obviously there was a mistake that was made. But as you were saying in your answer, there was more digging that SVMIC attorneys did here to make sure that the mistake was related to the outcome of the case, to benefit the doctor really. Right?

Zynthia: Absolutely. So whenever there is a mistake made, we want to go further, and really dig and try to figure out, what harm did this mistake make? Because we're all human, we all make mistakes, and so, in the practice of medicine, no one expects the physician to be perfect. It is the practice of medicine. And so there are going to be mistakes. So we want to find out what damage that mistake may have caused. And so in this instance, we even took into account the comparative fault of the family for failing to follow instruction, because doing depositions and discovery, we were really confident that although that employee did not document the conversation...

Brian: Right.

Zynthia: ...We looked at the normal practice of their clinic, their protocol, the instructions that were given in writing to the parents for their child's first well baby visit. The pamphlets. It was clear that these parents should have known to bring the child back.

Brian: What would you say is probably the biggest lesson, not only here in this particular case, but that physicians that are practicing in a variety of settings and specialties can kind of take away from this, that might help them in the future?

Zynthia: The doctor is ultimately responsible for what happens. And so in this instance it was a honest mistake, and a lesson learned for sure.

Brian: Absolutely.

Zynthia: We know that a complete and accurate medical record is what fosters quality of care. And where documentation should be prepared contemporaneously with the treatment, we know that it should be documented after the action or treatment is actually rendered. Premature and documentation is just as dangerous as untimely or late documentation.

Brian: And if the record is just incomplete, that's going to be difficult to defend. Correct?

Zynthia: Absolutely. We know from defending medical professional liability claims that often jurors are of the belief, if something is not documented, it's not done. And so conversely, if it's documented, they take that to be what happened. And so if there's not accuracy, it is very detrimental, and in worst case scenario it can be even deadly.

Brian: Zynthia, I really appreciate you taking the time to join us today, and get some good information from this case, and that I am certain that our listeners will be able to apply to their practice. Thanks for being here.

Zynthia: Thanks for having me.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policy holders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.