See what happens when the physician stops being in control of care in this real-life claim story. While physicians want to see patients take ownership of their own health, physicians also need to remain in control of the care, looking for the hand-offs that—if missed—can lead to adverse outcomes.
Sophia wasn’t thinking breast cancer that day. She was more annoyed and frustrated with the persistent sinus problems, facial rash, and headaches she’d been having. Like so many others, the 36-year-old mother of two wrestled withher weight and adult-onset type 2 diabetes, but she was a nonsmoker. If only she could be rid of the persistent rosacea and the chronic heartburn she suffered!
Today, Sophia would do something about it. She had an appointment with a new primary care physician. Today, they would get to the bottom of things. Two years and seven health care providers later, Sophia’s lifethreatening cancer condition, missed by provider after provider along the way, is at last revealed and she receives a double mastectomy. It is not at all the outcome she imagined when she entered that primary care physician’s office for the first time. If only someone had helped her navigate the system better. If only just one of those medical experts had connected the dots sooner.
The Timeline: Two Years and Seven Providers Later
- AT THE START
Sophia had a history of thyroid cancer, hypothyroidism, GERD, esophageal stricture, an ovarian cyst, and breast/chest pain. But on that first visit to a new primary care physician, her primary concerns were her sinuses, persistent rosacea, and chronic heartburn and reflux. No breast exam was done.
- AT 3 MONTHS, AT 8 MONTHS
Sophia was back for follow-up visits at three months and eight months. Complaints surrounded ongoing sinus problems, facial rosacea, and that her prescribed medications did not seem to be working. Bumps on her rightunderarm were noted. Again, no breast exam was done.
- AT 15 MONTHS
Sophia went to her OB/GYN complaining of left breast pain and a lump. Her established provider not available, she was examined by a nurse practitioner for a well visit. An exercise plan for weight loss was discussed. From the medical chart, it is unclear what else transpired except that Sophia was referred for a screening mammogram. Chart notes were not completed until two months later. Had Sophia’s chart notes been completed on time, they would have indicated that the mammogram results were not for the purpose of merely “screening,” but were ordered to evaluate a lump.
- AT 16 MONTHS
Sophia saw a radiologist for the screening mammogram and gave clinical history of a breast lump. The results showed no dominant mass and no suspicious calcifications, and the result documented was of a normal ultrasound. It was recommended that the patient have the ultrasound redone at age 40. The radiologist of record took a leave of absence without signing the reports. Another radiologist signed off on the screening mammogram without review.
- AT 17 MONTHS, AT 20 MONTHS
Sophia returned to her primary care physician twice complaining of dermatological issues—but no mention of the lump. There is no indication in the records that the physician even knew her patient had had other tests or what the results of those tests were.
- AT 22 MONTHS
Sophia was back in the PCP’s office concerned about an enlarging of the left breast mass and a new, second area of concern in the left breast. The exam by the physician confirmed a palpable mass, and Sophia was referred to a surgeon. The surgeon ordered a diagnostic mammogram to be done at a different radiology center, and this showed a suspicious finding in the left breast. A biopsy followed with a diagnosis of invasive lobular carcinoma of the left breast. A double mastectomy was performed and her prognosis was poor.
- AND SO THE LITIGATION BEGINS
Sophia sued because of the delay in both diagnosis and treatment of the cancer. In the out-of-court settlement that followed, those sued—the PCP, the OB/GYN, the new ARNP with the OB/GYN’s office, the first radiologist who interpreted the screening mammogram, and the second radiologist who signed off on the report— shared in the cost of the settlement.
A PERFECT STORM IN THE MAKING
A perfect storm was in the making. Why did the nurse practitioner order a screening exam versus a diagnostic exam? Was it a miscommunication and would it have been caught had the chart notes been accurate and timely? What might the covering radiologist have done differently? What if the radiologist had zeroed in on the lump and asked whether the mammogram should be a diagnostic exam and not a screening exam? Instead, the providers did not consult one another, and no one provider knew the big picture or took charge of Sophia’s care plan.
Five of the seven providers are sued for malpractice. Each of them is stunned at the accusations of poor care, of missed opportunities. Each of them must defend against accusations that they have failed their patient and left her worse off than before she saw them. They must live with the fact that Sophia’s quality of life suffered, never to be regained.
“Litigation is never a fun experience,” says Amy Forbis, an attorney with Bennett Bigelow and Leedom P.S. who is regularly included on the “Super Lawyer” list by Washington Law and Politics magazine. Forbis understands what a sued physician endures. “Essentially, a lawsuit thrusts a medical provider into foreign territory. It would be like pushing me into the operating room.”
“And it’s not always about the medicine or the science of the case,” notes Forbis. “Sometimes, it’s about the story the Plaintiff has to tell or unanswered questions they still have.” Patients who sue often want to better understand the thinking that led to the care they received. Sometimes, it is about the medical facts and individual provider’s role in the care in conjunction with the other providers involved.
WHO WAS IN CHARGE?
It is widely encouraged in today’s health care environment for patients to be actively engaged in their own medical care. But in Sophia’s case, who ran her medical appointments? While it can be uncomfortable to disagree with a patient, the physician with the expertise can help the patient understand the treatment options, the alternatives, and the risks of declining or delaying treatment. In this case, Sophia’s care was compromised. Did her persistent concerns about her skin and other more minor health issues distract the providers from the possibly life-threatening lump mentioned along the way? Which of her issues deserved the primary focus of attention and follow-up, and by whom? When the expectations of each of her health care providers were not followed through, it contributed to the lack of coordinated care.
Patients are usually not equipped to know the extent and complexity of their medical conditions. Research shows that 50 percent of patients leave their doctor’s office not understanding what the doctor told them, 50 percent of all patients fail to fill or take their prescribed medications as directed, and a startling 90 percent of all patients do not make any lifestyle change as discussed with their physicians1.
Most patients lack a grasp of medical knowledge. They trust their medical professionals to educate them. As part of that trust, and in exchange for payment, they also have a reasonable expectation, as did Sophia, that the physician will clearly communicate at each step in the chain of care what needs to be done and why. This sets an expectation of the patient, as she too has a responsibility to communicate in return and help the physician fully understand the nature of a particular issue. It is not unusual for a physician to determine that what brought the patient to his or her office may not be the most important medical issue that the patient is facing. The physician should listen to valid concerns and at the same time keep the discussion from veering off track and burying the chief health concern. A patient can fulfill their role and responsibilities better when the provider sets clear expectations for the patient.
THE TEAM, COMMUNICATION, AND RECORD REVIEW
In working as a health care team, the team must identify early with one another their respective roles in treatment. The team must communicate with one another to clarify how they will assemble a 360-degree view of the patient’s clinical presentation and course of treatment. That communication should include reaching a consensus on prioritization of all the clinical issues presented.
In such situations where multiple providers are involved in the care of a patient, it may be useful to identify a central provider (PCP or OB/GYN, as an example in Sophia’s case) to whom all other providers can send their notes, tests, and plans, and who can coordinate the care. This is important to avoid redundancy and waste. More importantly, this will avoid issues getting missed as each provider assumes that someone else is taking care of it.
Can a physician with a busy practice realistically be expected to read all chart notes and talk with all other providers on a team in advance of each patient visit? Forbis believes that xpectations and good practice are case specific. “It honestly depends upon the medical circumstance and the patient’s issues. If the circumstance warrants more indepth review of the chart and expanded conversation with other providers, it should be done. If not, less review is acceptable. The key is thinking about and considering the circumstance and determining if more information is necessary or potentially helpful.” Make sure you consider the information provided by the patient through written questionnaires and oral history to determine what, if any, additional information should be obtained.”
Such diligence can have significant impact. In Sophia’s case, a screening mammogram may have been more affordable, but a diagnostic mammogram done that much sooner might have caught the cancer in time. Appropriate triage and follow-up are key, and when handing a patient off to the care of another provider, clear communication and ordering of the right medical procedure at the right time improves the opportunity for successful outcomes.
TAKING THE HELM FOR A PREPARED DEFENSE
The time to assume the helm of a patient’s chain of care is at the very beginning. Juries are often not sympathetic to “the patient was negligent” arguments. Nor do they like to hear, “I did everything right. It was that other provider who dropped the ball.” Says Forbis, “No matter how certain you may feel in your assessment of what happened, it is best to comment about your own care and not pass judgment or finger-point at another provider’s care.” What does help your case is consulting with a professional liability lawyer or calling the risk manager at your insurance company at the time of an adverse event or outcome and not waiting for a lawsuit to happen. If you are concerned about the care a patient has received or that a lawsuit might result, consult those who know and keep them in the loop.
Ultimately, there are three prongs in medical professional liability litigation, and the Plaintiff must prove the physician owed a duty to the patient, that there was a breach of that duty, and that the breach of that duty resulted in harm to the patient. A few observations about those elements:
- Standard of Care. “What would a reasonably prudent provider do in the same or similar circumstances?” asks Forbis. Medical record documentation, besides providing the primary source of information for defending a claim, is the only contemporaneously recorded history of a patient’s treatment. It is the foundation for immediate and future assessment and for treatment planning. “Document the treatment provided at the time,” Forbis advises physicians. “Include in the documentation your history, assessment, and plan. The charting should include your thinking, such that the chart notes tell the story of your patient encounter.” Remember that the standard of care applies whether the provider is a physician or a physician’s assistant.
- Proximate Cause. That which was done caused a harm that would not have happened otherwise. In Sophia’s case, had her cancer been diagnosed sooner, she may have fared better and thus avoided the personal toll and expense of late-stage cancer.
- Injury/Damages. These include reasonable value of past and future medical expenses and past and future lost wages; disability, disfigurement, and loss of enjoyment of life; pain and suffering, both mental and physical; and loss of consortium (love, affection, care, and services).
CAREFUL DOCUMENTATION IS EVERYONE’S FRIEND
Comprehensive chart notes are critical for both team communication and for the documentation of care. As burdensome and time-consuming as they can be, notes need to be specific and relevant. You won’t necessarily remember months or years later why you chose a treatment path or diagnosis. The rationale should be clearly stated for treatment decisions made, such as “Patient refuses diagnostic exam because of cost concerns.” Your notes are an electronic footprint in the medical chart. No private notes or shadow charts. Pay close attention to informed consent, too. Consider individualizing your consent form to address specifics of the treatment or procedure. “Notes should be done at or near the time as part of the official record,” says Forbis. “When care is prolonged and fragmented (as in Sophia’s case), it is easy in a busy practice to cut and paste from appointment to appointment.” The speed and ease of electronic medical records create ample room for error.
Legal experts caution that notes added later, in anticipation of litigation, can be called into question. Frequent views of the electronic medical record after the fact also raise red flags and, in comparison, can confirm a jury’s concern that there was not enough attention paid to the medical record, or the patient, before the poor outcome.
“Assess and control your office procedures, too,” Forbis cautions physicians. “This includes protocols and office staffing responsibilities.” No matter how busy the medical practice, a system of “tickling” or follow-through is vitally important. Did the patient make that appointment with another provider? What did that provider recommend? How realistic are your protocols for covering each other’s leave? Or, for instance, is it a matter of course that a radiology technician at your clinic will confirm the reason for the patient’s test? A simple confirmation with Sophia addressing whether she was having a routine screen or addressing a specific health concern might have diverted her to the appropriate diagnostic (rather than screening) mammogram sooner.
Care must also be taken when a physician feels an apology to a patient is necessary. The point of an apology is to convey compassion after an unexpected outcome, not provide an admission of guilt or wrongdoing. The right words at the right time can help physicians keep a supportive dialogue going with their patient, even under the most difficult of times. However, in many cases, an apology should be given in consultation with an attorney or your insurance company. They can help you with the crucial wording so that an apology supports your relationship with the patient but does not work against you should a claim be filed.
NOT IF, BUT WHEN
All physicians face adverse outcomes over the life of their practice, and most physicians experience a claim or a lawsuit at some point in their careers. Medical providers who succeed are those who are compassionate, caring, and current in their field. Today’s successful physician also takes care by being savvy about what can lead to litigation and what resources are available to help defend against liability.
These reasons are why Forbis likes working with physicians as clients. “My clients are educated and highly knowledgeable. I have the pleasure of being able to rely upon my clients as experts on the very issues that are in dispute and being litigated.” The key is to remain the attentive expert during patient encounters, document the encounter in a complete fashion, and watch for the hand-offs that may require extra attention and follow-up.