$750k for Lack of Documentation?

A Patient’s Personal Tragedy Becomes a Practice Tragedy

malpracticecasesummaryMr. Smith, 50 years old, presented as a new patient in January 2009. He checked “no” to all questions on the health history form but complained of headache and nausea. Dr. Jones performed an upper cervical adjustment on Mr. Smith’s first visit and prescribed Mr. Smith an 8 week care plan.

On Mr. Smith’s third visit, Dr. Jones’ staff noted that Mr. Smith did not look well and appeared lethargic. Mr. Smith still complained of headache and nausea and vomited in the office. Dr. Jones told Mr. Smith that he cannot treat Mr. Smith and that Mr. Smith should go to the emergency room. However, Mr. Smith refused and stated that he probably just came down with the flu and begged Dr. Jones to adjust him. Dr. Jones reluctantly performed an upper cervical adjustment on this visit. Dr. Jones did not document that he advised Mr. Smith to go to the emergency room.

The next day, Mr. Smith’s spouse called Dr. Jones to report that Mr. Smith had vomited again. Dr. Jones advised Mrs. Smith to take Mr. Smith to the emergency room immediately. Again, Dr. Jones did not document his conversation with Mrs. Smith. Mrs. Smith did not take Mr. Smith to the hospital as she thought Mr. Smith merely came down with the flu.

Dr. Jones treated Mr. Smith a total of five times. However, in February 2009, Mr. Smith passed away. Autopsy of Mr. Smith revealed the cause of death was due to blunt trauma to the head.

The Estate of Mr. Smith subsequently filed an action against Dr. Jones alleging failure to properly review and inquire about Mr. Smith’s health history and failure to refer to a physician which ultimately caused Mr. Smith’s untimely death. The Estate of Mr. Smith sought $750,000 in compensatory damages, future earnings, and loss of companionship.

At trial, the Estate of Mr. Smith argued that had Dr. Jones properly reviewed and inquired about Mr. Smith’s health history, Dr. Jones would have discovered that Mr. Smith fell and hit his head on the cement while playing basketball in the last week of December 2008. The Estate of Mr. Smith further argued that Dr. Jones should not have treated Mr. Smith and should have referred Mr. Smith to a physician.

The jury found in favor of the Estate of Mr. Smith and awarded $750,000.

Learning Points
What could Dr. Jones have done differently to prevent such a lawsuit? As an initial matter, Dr. Jones should have held an interactive discussion with Mr. Smith regarding his health history form. At trial, Dr. Jones admitted that he never reviewed Mr. Smith’s health history form with him. Had Dr. Jones held an interactive discussion with Mr. Smith, Dr. Jones would have asked key simple questions including “what has changed recently that may contribute to Mr. Smith’s headache and nausea?” and “when did Mr. Smith’s headache and nausea start?”

Furthermore, at trial, Dr. Jones argued that he in fact referred Mr. Smith and Mrs. Smith to the emergency room but they refused to listen. Although Dr. Jones believed that he complied with applicable standard of care when he referred Mr. and Mrs. Smith to the emergency room, Dr. Jones did not have any documentation to support his defense. Had Dr. Jones appreciated the importance of thorough and appropriate documentation and understood that a complete patient record serves as more than just treatment notes, Dr. Jones most likely would have achieved a more favorable outcome.

Beyond the case of Dr. Jones, every practitioner should consider employing the following practices to prevent a similar fate:
  • Hold an interactive discussion with the patient regarding the health history form, document the discussion, and note any clarifications you made to the patient’s responses;
  • Have the patient review, sign, and date the heath history form at every visit;
  • Pursue unanswered questions;
  • Ask the patient if he/she had seen other health care professionals since the last visit and why;
  • Inquire about any medication regimen that has been started, discontinued, or changed (prescribed or over-the-counter);
  • Ask about noticeable changes in the patient;
  • Take vital and diagnostic signs at every visit if there is an acute situation warranting it;
  • Compare current to historical findings;
  • Consider not treating or refer to another Health Care provider when positive changes are not achieved;
  • Pay attention to other indicators (i.e. level of consciousness; skin; eyes; inability to feel and move; as well as patient comments);
  • Record should reflect all that transpired between practitioner and patient including documentation of missed appointments, telephone messages, patient non-compliance;
  • Always document referral to a physician, emergency room, or specialist by completing a referral form, giving the patient a copy and keeping a complete referral form in the patient’s file;
  • In the event of patient non-compliance, consider withdrawing from professional attendance in writing and sending the withdrawal letter via certified mail with return receipt and keeping a copy of the letter and receipt signed by the patient in the patient’s file.
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