Episode 062: When Small Concerns Become Big Problems

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. Welcome to our podcast. My name is Brian Fortenberry. Thanks for taking the time to join us today, as we're going to discuss another closed claim. We have a couple of people here that can help us through this, and hopefully learn a lot about what went right, what went wrong, and how we might be able to affect some people in the future as they practice medicine. We have, today, Katy Smith and J. Baugh. Welcome. How are you guys?

Katy: Doing well, Brian.

J. Baugh: Doing very good. Thanks, Brian.

Brian: Katy, let's start with you. Tell us a little bit about your time at SVMIC, your background, and experience.

Katy: Well, Brian, I've been at SVMIC for over 12 years now. I'm a lawyer in the claims department. Before joining SVMIC, I was in private practice, and one of my jobs that I was able to do is help defend our insureds when they were sued.

Brian: You certainly have been here at SVMIC for a while, helping on these cases, so we'll be able to get a lot of information from that. J., tell us a little bit about your background. I know that you are an attorney, you're an accountant.

J. Baugh: Well, I do have a degree in accounting. I became a CPA in 1989, and I then went to law school at night. I practiced accounting during the day and went to law school at night. I became a lawyer in '95. I've been with SVMIC for 18 years now, and I've spent all of that time in the claims department, managing claims files for SVMIC.

Brian: This is an interesting case that we have today. It has to do with a middle-aged female that was a diabetic patient, and that always is a red flag for physicians and healthcare providers. That went for the first time, to this family practice physician to get medicine for her diabetes. J. and Katy, let's start with the initial appointment. How did that initial appointment go when she showed up?

Katy: Well, Brian, I think it was a fairly routine appointment. She presents for the first time, to this family practice physician, and needs a refill of her diabetes medicine; that was provided. Then the patient, as patients sometimes do, had a, "Oh, by the way, would you look at this area of concern? I have a lesion on my buttocks," that the records described as a small, pimple-type lesion. The doctor looked at it, and he was concerned that the lesion was infected.

So, in addition to prescribing medicine for her diabetes, he prescribed a course of antibiotics, Silvadene cream, and also pain medicine for her; a follow-up appointment was scheduled for two weeks.

Brian: It's not unusual for a patient to come in, and their primary reason for being there is one thing. Then, as Katy said, you get the, "Oh, by the way."

J. Baugh: That certainly happens with us, too, doesn't it, Katy?

Katy: Agreed. Yes.

J. Baugh: We get calls all the time from physicians and office managers that have a question, and they say-

Katy: "Oh, by the way."

J. Baugh: ... "While I have you on the phone-"

Katy: That's right.

J. Baugh: ... "let me ask you this totally unrelated question."

Katy: We're always happy to answer that question-

J. Baugh: Absolutely.

Katy: ... just like this doctor was happy to try to help this patient.

Brian: Sometimes the "Oh, by the way" is a bigger red flag than the reason they called.

Katy: Or is the main problem. Right, exactly.

J. Baugh: Could be what they're really calling about or what the patient is-

Katy: They really need.

J. Baugh: ... actually seeing the physician for. That's right.

Brian: You have this patient came in for the diabetic medicine and this, "Oh by the way lesion." He prescribes, as you said, antibiotics and says, "Hey, come back and see me in a couple of weeks." Well, after the appointment and the antibiotics were prescribed, what happened between that initial appointment and that follow-up appointment then, in two weeks?

J. Baugh: Well, unfortunately, the lesion clearly got much worse during that two week period, between the initial appointment in the follow-up appointment. As a matter of fact, the area where the lesion was, became gangrenous. Gangrene was found on her buttocks, and her condition got so bad that she eventually required surgical debridement; then after that, she had to have a colostomy. So this lesion got dramatically worse during this two week period of time.

Brian: Wow.

Katy: A lot happened.

J. Baugh: Very surprising.

Brian: We went from what was described in the beginning as a pimple like-

Katy: A small pimple type lesion.

Brian: ... lesion to a surgical debridement and a colostomy. This is a big deal here. What type of care did the patient seek in between those two weeks then?

Katy: That's really kind of the big deal of the case.

J. Baugh: Yeah. It is.

Katy: It appears that she sought no care, at least no physical treatment of the area of the lesion. The big issue in this case, in addition to the medicine, is communication, patient communication. Did she contact the office? If so, what did she say? There were varying versions of that story.

J. Baugh: You have a husband said that he called the doctor's office to say that they had run out of antibiotics and that they had run out of pain medication. The husband even said that the doctor refused to see the patient, which I thinks pretty difficult to believe that that's what actually happened, but that was the husband's claim. The doctor then said, well, the husband called and said that the patient had run out of pain medication, and that was all that he knew had happened.

Brian: To hear that a physician refuses to see a patient is something that I don't know that I've ever heard. Now that accusation has been made, but I don't know many physicians that are not willing to see patients in need. But was there documentation of any of this in the healthcare record?

Katy: Unfortunately no.

J. Baugh: No.

Katy: Of any of the calls, so we don't have a documentation to support what the patient says, or the husband said, or what the physician claims happened or what his office staff claimed happened. It's completely oral versions of the facts.

J. Baugh: It really became a, he said, she said type of an argument, and which are you going to believe?

Brian: That is often the crux of many of these types of cases.

J. Baugh: That's really a main role of a jury in a trial is, which set of facts are they going to believe? Can they believe one or the other? Do they believe neither? Do they somehow believe both and try to the facts work together? That's a main role of a jury in a lawsuit like this.

Brian: Do you know, did they go to the ER at any point? To get to the point that we see what the outcome is, there's gotta be a progression there. This has got to be getting worse over time.

J. Baugh: Right.

Brian: If you call your physician and they say, "I can't see the patient," or, "I refuse to see the patient?" You would think that the next step would be, well we'll go to the ER, and get checked out there. That didn't happen?

Katy: Didn't happen. I think Brian, you've highlighted the second major aspect of this claim, which is that patients own responsibility for their health to, at the very least, let a physician know if there's been a material change, progression, worsening of the situation for which the physician was treating them.

J. Baugh: If you have to seek care from another healthcare provider, if the husband is correct, which I'm not sure I believe, but if he was correct, that doesn't mean that you give up trying to seek healthcare. You go to the ER, you go to another doctor, you do something. The husband said that the wound actually increased in size and severity during this two week-

Katy: And smell.

J. Baugh: And smell. He went so far as to buy a walker for the patient so that she could emulate. Obviously, the husband knew this was getting worse because he went so far as to buy a walker in order for her to move around.

Brian: To escalate to the point that walking became difficult, you have an increase in pain, an increase in size, an increase in odor, and you don't seek further medical attention. There has to be some responsibility there put on the shoulders of the patient, right?

Katy: Yes, and I think that the jury, in this case, would agree with you, definitely. Obviously, a lawsuit was filed.

Brian: Yeah, I was about to ask. What ended up happening in this particular case?

Katy: Suit was filed. It progressed through litigation to trial. Was tried, and resulted in a defense verdict for the physician. The jury believed the doctor's version of the story and/or blamed the patient for allowing her condition to get to the point that it did, without seeking any additional care or follow up care from the physician.

Brian: When you get a defense verdict, that's always a great feeling certainly for the physician, because often it's validation that what you did was right or okay. That being said, now lets kind of switch gears a little bit. We say time and time again if it's not documented it didn't happen. That, that documentation in the medical record is often the best witness at a trial, because it doesn't forget; it remembers all of those things. If you don't have that medical record documented, then it becomes a problem. Where this might not have even escalated to a case being filed, and even having to go to trial if that was in the medical record. Is that fair?

Katy: I think that's very fair J.. What do you think?

J. Baugh: I think so because if you've got some sort of documentation that you made at the time that the phone call was made, the visit was made, it's made contemporaneously with the communication itself. Then if you have to show that a year or two years down the road, then has a lot of credibility to it. As opposed to trying to explain something a couple of years later, where people's memories kind of fade or change over time, or what have you. If you document that as soon as it happened, the jury is going to know you document it that not because you were preparing for litigation, but because you were making an honest documentation, an honest assessment of what really happened at the time that it happened.

Katy: It certainly goes to credibility, I think. Of course, in an ideal world, you would completely and fully document everything in the call, all the important things. But even if it's just a kind of skeleton documentation of the call, it helps, I think for a jury to believe your version of the story. It certainly makes you more credible.

Brian: If the doctor had just made a simple documentation in the chart that said, "Patient's husband called and requested pain medication." If that's all he had put in there, it didn't have to be a very lengthy note. That would have gone to prove not only that that happened, but that the things that the husband claimed in addition to that-

Katy: Are no true.

Brian: ... that would tend to show didn't happen. That's right.

Katy: That's right. I know on our website we've got a nice link for after hours phone pads, so not only the calls that are made during the office hours, certainly doctors need to be documenting it; we need to get our staff to document it. But also if there's an after hours call, we need to document that. If you need those types of pads, jump on our website, there's a link where you can request them.

J. Baugh: That's right. You can keep those types of notepads at your home, you can keep them with you when you travel. You can always have those with you, and that helps a lot to have that documentation in the chart.

Brian: We can certainly put that link in our show notes of this podcast, so our policyholders can access that. You may be that physician that nine out of 10 times you document. Nine out of 10 times you do this, but as it always turns out that one time that you don't, is when something like this happens. I really respect the physicians, because you have to approach every phone call, every patient encounter, everything you do when you're rendering a medical service or giving advice, you have to think about it like, "I've got to make sure that I've done everything to cross all my T's and dot my I's here, because this could come back and I have to explain it one day."

J. Baugh: That's right, you sort of have to be on your A-game all the time. Because that one time out of tune or that one time out of a hundred is the one in which you're going to be questioned about what you did.

Katy: So I think it's all about just developing the habit of, that's the next step after whatever: after leaving the room, after hanging up the phone, after giving instructions to your nurse. The next step to complete that task is, you got to document. Whatever needs to be documented, just finish that up.

Brian: It's easy, I mean in my life I get so busy that it's like I feel like I'm rushing from this to the next, to the next, and I think I don't have time to do that, but I really don't have time to be involved in a case that could go on for years or months; that I really don't have time for.

Katy: That's right.

Brian: So it's better to take up a little more time on the front end, than deal with that on the backend.

J. Baugh: Yeah.

Brian: Great News here is, there was a defense verdict for the physician. That being said, was there anything that the physician could have done differently in this case, if anything at all?

Katy: Well, definitely and we've talked about the communication. That definitely is an area to address in the future. A good teaching point, I guess, if you will. Then, I think there were some concerns on the medicine, just things that kind of made me question.

J. Baugh: The facts show that the doctor did not take a culture of the lesion and that a blood sugar level was not obtained from the patient, and he knew that the patient was there to get diabetic medications. Neither of those things were done. The possibility of a red flag might have been raised, when the husband called and asked for more pain medication.

Katy: I agree.

J. Baugh: That's not just a husband's version of the facts. The doctor admitted, the husband called and said, "My wife has run out of pain medication." The doctor, you would think, would start asking some questions. Well, why has she run out? Is she takes you more than I've prescribed?"

Katy: "Why does she still need it?"

J. Baugh: "Is a situation getting worse?" There should be some questions that are raised, as a result of the husband calling and asking for more pain medication. We don't have anything in the record, that shows that the doctor pursued that line of questioning.

Katy: Certainly, this patient is a little special because A, she's a diabetic patient, which raises all sorts of additional care concerns. She's also a new patient to this practice.

J. Baugh: That's a good point.

Brian: That is a great point. We didn't talk about that initially as much, but you have a whole history and physical that may not be as thorough, because it is a brand new patient; that could have played in, as well.

J. Baugh: Sure. Sure, and expectations. The patient might not know how this doctor's office worked. Conversely, the doctor might not really know how the relationship with the patient is going to play out. That's just another kind of thing to keep in mind when you're seeing new patients. Just make sure you've gotten good communication about what they should expect from you, and know what you need from them, and then document it.

Brian: Did the follow-up visit actually happen, or did things deteriorate enough that we never got to that point?

Katy: I think she showed up for her regularly scheduled visit.

J. Baugh: She did come back for that two week appointment, and that's when the doctor first learn of how serious the situation had become.

Brian: She waited until that-

Katy: She waited until that time.

J. Baugh: Yeah, that's right.

Katy: Yes.

J. Baugh: It's interesting, the patient said that she waited the two weeks, because she trusted the physician. Yet the husband said, that the doctor told him that he refused to treat the patient. There's something going on there-

Brian: That's contrary-

J. Baugh: ... I'm sure the jury picked up on. Wife was saying one thing, "I trust the physician." Husband saying, "The physician wouldn't treat my wife." So what's going on there?

Katy: I think that's just a little small point to make about medical records, and we are certainly very much encouraging thorough documentation. But when it happens, as it will, that you don't document everything you wished you had, the medical record is just a portion of what's presented to the jury. The jury has the opportunity to listen to your story, and assess your credibility, and do the same with the patient. Don't worry if you didn't put everything in the record that you wish you had.

Brian: As they say, it may be the best witness, but it's certainly not the only witness.

Katy: That's correct.

Brian: It's going to be the totality of everything presented there. As we get ready to wrap up, what are some main takeaways? I think we've hit a lot of them already with the communication issue, with the documentation issue. Are there any other things that could be learned from this, in a similar situation For our listeners out there?

Katy: I think first, we've hit it pretty repeatedly-

J. Baugh: Yeah, we really have, about the communication and documentation.

Katy: Yes, document it.

J. Baugh: It feels like we say that a lot when we're reviewing these cases, and we're talking about these cases, that documentation and communication is so important, but it really is. It's amazing what a jury will hang their hat on. You think that they're going to try to understand the medicine and that they would look at a case from the same perspective that a doctor would.

Brian: Right.

J. Baugh: But they really focus in on smaller type of issues that they can understand, such as communication and documentation. That's very important to the jury, to be able to understand who said what to who, and how can you prove that was actually said.

Brian: I think most of the time the jury, and patients in general, will give the physicians and healthcare providers the benefit of the doubt. I mean, they are trusting of them, and they understand the difficult things they have to do on a daily basis, and the difficult decisions that they make. They're going to give them the benefit of the doubt, so whenever there may be some lapses in this communication and documentation, maybe they're a little less understanding of that. Or it becomes a little more difficult at that point because they've given them the benefit of the doubt.

Katy: Yes.

J. Baugh: I'm not sure what the percentage is off the top of my head, but I know that an overwhelming majority of cases that we take to trial, the doctor wins. A lot of that is because they're providing good care, and a lot of that is because the jury, as you said, Brian, gives a doctor the benefit of the doubt going into trial.

Brian: Well, this has been a fascinating case and something that I know our policyholders and listeners can learn from, to hopefully prevent this type of issue coming up in the future. Katy, J., thank you for being here today.

Katy: Thanks, it was great to be good to be here.

J. Baugh: Good to be here. Thank you Brian.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect, with your host Bryan 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. Policyholders or 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.