Episode 117: An Ounce of Prevention is Worth a Pound of Cure

Speaker 1: You're listening to Your Practice Made Perfect, support, protection and advice for practicing medical professionals, brought to you by SVMIC.

J. Baugh: Hello everyone. And welcome to this episode of Your Practice Made Perfect. My name is J Baugh, and I'll be your host for this episode. Today, we're going to cover another closed claim and this one is called an ounce of prevention is worth a pound of cure. And to help us discuss this closed claim is Zynthia Howse. Zynthia welcome to the show.

Zynthia Howse: Hi J, how are you? Thanks for having me.

J. Baugh: I'm doing just fine. And thanks for being here. Before we start discussing this closed claim, could you give us a brief introduction of yourself?

Zynthia Howse: Sure. As you stated, my name is Zynthia Howse. I'm a senior claims attorney for SVMIC. I've been here for over 22 years.

J. Baugh: Well, Zynthia, I've been here for almost 21 years. So we as claims attorneys have about 40 plus years of experience with these claims. And it seems like we can always find a closed claim that has some information for our listeners in order to help them better run their practices. And so today we'll be discussing a case involving a regular and routine process that all medical practices deal with and that's medical records requests. Now, while it may be routine, the importance of following a process can make all the difference. Medical offices routinely receive medical records requests, and they should have established policies and procedures for the proper handling of those medical records requests in order to promote patient care and to comply with state law and with HIPAA privacy regulations, while such factors are important, a frequently overlooked fact is that the proper handling of medical records requests can also potentially prevent a medical malpractice lawsuit from being filed. So let's discuss the case and then we'll share some lessons learned.

Zynthia Howse: Yeah. So J, this is a absolute important topic that we're discussing today. A plaintiff's attorney would typically review their client's medical record before filing a medical malpractice lawsuit. And if that plaintiff's attorney is not provided with the requested copy, then they may proceed with filing a medical negligence claim under the misconception that the healthcare provider committed medical negligence due to the missing medical records. And it may all be not true.

J. Baugh: Well, that's right Zynthia. And that's exactly what happened in the following closed claim case. I'll start by sharing some information about our patient. In this case, we have a 40 year old female patient with GERD, dysphasia and esophageal stricture. She had a consultation with Dr. Orton and decided to undergo esophagogastroduodenoscopy or an EGD with dilation. During the consultation, Dr. Orton reviewed the risks and known complications of the procedure with the patient and had the patient sign an informed consent form.

Zynthia Howse: So after that was done, unfortunately, the patient did sustain a esophageal perforation during this procedure, which required extensive post-procedure treatment. So Dr. Orton's medical office subsequently received a request for the patient's medical records from the patient's attorney, and they requested a complete copy of the patient's medical chart. However, when Dr. Orton's office processed this request some of the patient's medical records, including the informed consent form that had been signed were inadvertently not sent to the patient's attorney.

J. Baugh: And as we discussed in the beginning, the patient's attorney subsequently filed a medical malpractice lawsuit against Dr. Orton alleging medical negligence and lack of informed consent. But during the discovery phase of the litigation, Dr. Orton's defense attorney realized the error and promptly sent a copy of the patient's complete medical chart, including the informed consent form to the patient's attorney.

Zynthia Howse: That is all correct. So the medical chart was immediately upon realizing it was missing, was sent to the attorney. And in that medical chart, in the subsequent records that were sent that included the informed consent form, which enumerated the risk known complications of the EGD procedure, including the risk of a perforation or tear to the esophagus, the very injury the patient had sustained. So shortly after receiving this informed consent form, the patient's attorney withdrew from representing the patient, and then the patient was not able to secure another attorney to take her case. And about two years after the filing, the case was dismissed for lack of prosecution.

J. Baugh: Well that's all good news for the physician. And while the case was eventually dismissed, Dr. Orton still had to expend a significant amount of time and effort to defend a medical malpractice lawsuit that potentially could've been avoided in the first place by properly handling the original medical records requests from the patient's attorney.

Zynthia Howse: So as demonstrated in this closed claim case, there are proactive steps that a medical office can take to reduce professional liability exposure. The medical record is the single most important piece of evidence in a medical negligence case. And certainly as in this case, in the evaluation of a potential medical negligence case. So this case truly highlights what we have both seen J in our career, the importance of good documentation and a good office system in place for maintaining and reproducing the medical record.

J. Baugh: You know Zynthia, that's absolutely right. The medical record is such a key piece of evidence in a medical malpractice lawsuit. So it seems to me that when we talk about managing a physician's risk, there are at least a couple of ways to look at risk management. And the first is the more obvious, which is what can a physician do to document his or her treatment of the patient so that he or she can defend themselves in the event of a malpractice lawsuit.

But this closed claim shows there's another type of risk management. And that involves what can the physician do to lower the chances of a medical malpractice lawsuit being filed in the first place. I mean, these types of lawsuits can take years to reach a resolution and they can cause a lot of stress for the physician. So it would make sense if the physician could see if he or she could take some steps in the way of risk management to try to avoid a medical malpractice lawsuit from being filed in the first place. So Zynthia, as we wrap up this episode, do you have any last minute tips or advice that you would like to add?

Zynthia Howse: I would just say, as you know, this process really could be viewed as analogous to the timeout that physicians take in a operating room where everyone stops to make sure they have the right patient, the right body part, the right procedure. Here, the office staff, be it, the HIPAA privacy officer or the dedicated person who routinely handles all medical records requests, they need to take a time out to make sure they have the right patient, the right authorization, the right and complete medical record that has been requested, keeping in mind that even some records that you've received from another provider could become part of your medical record. So most often the requesting attorney is looking for evidence of liability. And so if we could end that quest by simply supplying good documentation, it saves everyone time, stress, money, and appearance that we're trying to be misleading or deceptive in responding to the request for medical records.

J. Baugh: Well, Zynthia, that's a great analogy that you came up with involving a time out, just as a surgeon takes a time out before surgery, medical records officers should do the same thing when it comes to producing the medical record. That's a great analogy. So I'd like to thank Zynthia Howse, our senior claims attorney from SVMIC for joining us today to talk about this closed claim. Once again, Zynthia, thank you for being here.

Zynthia Howse: Thanks. And just please remind our listeners that SVMIC has valuable information and educational resources for our policy holders that can help the medical office staff take these proactive steps, which not only improve patient care and legal compliance, but which could also potentially prevent a medical malpractice lawsuit from being filed. Thanks for having me today.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect. 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 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.