Your Practice Made Perfect
This podcast series provides support, protection, and advice for today’s medical professionals. Brought to you by SVMIC, a mutual insurance company that is 100% owned and governed by our policyholders.
Aug. 10, 2018
Episode 028: Don’t Leave the Rest Unwritten
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"The Rest of the Story" by Ken Rucker
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 thanks for joining us. Today's podcast is going to be about a closed claim that we have reviewed here. We're going to get into some discussion, but first of all, I would like to read the background story so you will know exactly what we're discussing.
This story has to do with Paul Smith, a 52-year-old male presented to the emergency room in a small community-based hospital with complaints of chest pain, shortness of breath, and nausea. Mr. Smith was quickly triaged and shortly thereafter, Dr. Steve Andrews began his initial assessment. The patient underwent a chest pain protocol workup, including an EKG and lab work. The troponin level returned at 0.10 nanograms per milliliter. This caused the patient to fall within the facility's classification for moderate risk of myocardial infarction. The EKG machine indicated that the EKG was abnormal based upon its computerized algorithm, but it was not indicative of an acute cardiac event. The patient was given a GI cocktail and monitored over the course of several hours, then discharged with the diagnosis of unspecified chest pain. Instructions were given for the patient to follow up with his cardiologist, take nitroglycerin sublingually, and return as needed.
Exactly one week later, a family member found the patient collapsed on the floor at this home. EMS was called and resuscitation efforts were unsuccessful. The patient was taken to the local hospital where he had been treated the prior week and announced dead upon arrival. A lawsuit was filed by Mr. Smith's estate seeking damages for the wrongful death of Mr. Smith due to alleged negligent care provided by Dr. Andrews. The lawsuit asserted that Dr. Andrews needed to admit the patient, consult with a cardiologist or transfer the patient to a tertiary care center for treatment. Based upon the facts noted, one may be surprised to learn that Dr. Andrews was shocked to be named in the lawsuit, and could not believe the accusations that were being lodged against him. The complaint that was filed was based upon the information that had been documented in the medical record. All who reviewed the medical record including the defense experts noted that the documentation was scant.
The rest of the story in this situation is not what was in the medical record, but what was not in the medical record. Now, Dr. Andrews's view. Dr. Andrews recalled the events of Mr. Smith's presentation to the ER quite well because he had learned that Mr. Smith had died and recalled that he had seen him the previous week in the ER. Dr. Andrews recounted his handling of care while it remained fresh in his mind. After doing so, he felt that he had managed the case in an appropriate fashion. Dr. Andrews walked in to see Mr. Smith and despite his complaints of pain, he was well enough to have a friendly discussion about some mutual friends, as this was a small community.
Dr. Andrews inquired about Mr. Smith's past medical history, and Mr. Smith related that he had a history of chest pain and discomfort over the last several months and had been evaluated by a cardiologist. The cardiologist had diagnosed him with moderate coronary disease and had prescribed nitroglycerin to be taken as needed for chest pain. Just the day before, the cardiologist had stated that he felt that the patient's symptoms were related to a hiatal hernia and had made a referral to a gastroenterologist for further evaluation. Dr. Andrews was concerned by the patient's level of pain, which was described as a 10 out of 10, and this pain level had resulted in the patient coming to the ER for an assessment as the symptoms were not new.
After the workup described above, Dr. Andrews remained concerned about a possible cardiac event and recommended that the patient be transferred to a tertiary care center for further evaluation due to the abnormal EKG and pain level. Dr. Andrews had spoken to a physician who was willing to accept the patient with a cardiac treatment center, but Mr. Smith declined the transfer since he felt much better after receiving the GI cocktail. Dr. Andrews was uneasy discharging the patient. However, the patient's explanation that he had been evaluated by his cardiologist and the fact that the patient's cardiologist had just concluded that the chest pain was not believed to be cardiac related caused Dr. Andrews to acquiesce to the patient's request. The patient's chart was noted to simply reflect a diagnosis of unspecified chest pain with instructions to follow up with the patient's cardiologist.
Dr. Andrews relied exclusively on the history provided by Mr. Smith related to the cardiac workup and did not confirm or discuss Mr. Smith's presentation with the treating cardiologist. However, the information conveyed was ultimately proven accurate. Unfortunately, the documentation of the full discussion of the past medical history and the decision-making process was absent from the medical record. Dr. Andrews did not feel the need to document in detail the interaction and only put minimal documentation in the chart. Instead, Mr. Smith and he had agreed upon what Dr. Andrews believed was a reasonable course of action in light of the fact that the patient's cardiologist had just determined that the patient's symptoms were not cardiac related the day before the ER visit. The desire of Dr. Andrews to transfer the patient for further assessment, the phone call placed to the tertiary care center, and the patient declining the transfer was likewise not documented. When the patient died just a week later, the patient's family, who was not present for the ER visit and only had the medical records to recount the events of the day, consulted with an attorney and a decision was made to file a lawsuit against Dr. Andrews.
So, to discuss this case today and to get in to review some of the issues and some of the things that we can learn to maybe change, we have with us Mr. Ken Rucker. Thank you, Ken.
Ken: Good to see you, Brian.
Brian: Ken, before we even get into the discussion of this case, can you tell us a little bit about yourself and your time here at SVMIC?
Ken: I am currently the Vice President of Claims for SVMIC, and I have been here for over 18 years and have had various roles in the Claims Department.
Brian: Well, Ken, here's a question. Let's start with this. Is there a common type of case where a patient is determined to not have a cardiac event in the ER and then discharged, only to suffer a bad cardiac event just days later? In these types of scenarios that patients come in the ER, is this common or is this kind of unusual?
Ken: There is a tendency for us to see claims anytime there is an adverse outcome following a visit to an emergency room for an acute condition.
Ken: So, in this type of scenario where the patient is complaining of chest pain at a 10 out of 10 level and dies within a few days or a week later, it is not unusual for us to see a claim asserted. Also, hindsight is 20/20 so it is easy for one knowing the outcome to call into question the decision to discharge the patient in light of the documented chest pain.
Ken: Family who has just lost a loved one will likely come to the conclusion that a cardiac event should have been obvious and that the death of the loved one should not have occurred.
Brian: In light of that, how are these ER visits, because we're talking about this as an ER visit that the patient comes to, and there's a cardiologist involved as well. How are the ER visits really different than say a office visit to a cardiologist and why is that important?
Ken: Emergency rooms are generally high volume care centers where it is often difficult to document every aspect of the patient care. In this case the documentation was very limited and really did not tell the whole story. The fact that the patient had just been worked up by a cardiologist from a cardiac standpoint was not documented, nor was the fact that Dr. Andrews sought to obtain a cardiac consult at another facility. The lack of complete documentation might have been due to a high patient volume in the ER, or it may have been due to the fact that Dr. Andrews let his guard down due to his general familiarity with the patient in the small community.
There are a lot of reasons as to why good documentation does not occur, but it is essential to make sure that the key aspects of the care are documented. In this situation, Dr. Andrews was not comfortable discharging the patient without an additional assessment, but he did so without documenting the effort to get the patient to go to a tertiary care center for a more thorough cardiac workup. Despite the fact that Dr. Andrews had given the patient's assessment a full and thorough consideration, the full details of what occurred were just not documented in the medical record.
Brian: In the ER whenever we're talking about there the number of visits, it's going to be a lot different when you don't really know what's coming through the door. That could be a potential part of this as well, right? That you don't really know what's coming in the door in an ER versus you have set up in a cardiology office so as you were saying in that part, that could be part of the issue here, correct?
Ken: That's correct. I mean a patient coming to the ER may have several things going on with them. In this situation cardiac was an option, but there were a lot of other issues including the fact that the cardiologist had just determined that it was a GI problem instead of a cardiac issue.
Brian: Bringing in the cardiologist that suspected that the symptoms were caused by this hiatal hernia, he wasn't really named in the suit. This ER doctor got hit with it. Why is that the case?
Ken: Well, no one knows for certain. The plaintiff in a lawsuit can choose who to sue and who not to sue. My assumption is that the cardiologist was not sued by the plaintiff due to the fact that Dr. Andrews made no effort to contact the treating cardiologist.
Brian: Well, were there other things there that were not documented as well that potentially could have led to an issue?
Ken: There were. There was an effort to transfer the patient to a tertiary care center, but this was not a facility where the treating cardiologist regularly practiced. Dr. Andrews considered the history provided by the patient, including the details of the workup by the cardiologist, but the cardiologist was not made aware of the presentation which made the abnormal EKG and the complaints of pain of 10 out of 10 level. You can also question whether or not Dr. Andrews would have been named in this lawsuit had he consulted directly with the cardiologist and if the discharge decision had been made jointly with the cardiologist's input.
Brian: That does make sense as to why maybe he was not brought into this. But now, let me ask you just kind of a general question, Ken. Is it normal for several doctors to maybe be named in a claim if they all had care involved?
Ken: That's a pretty common scenario. If there are a lot of physicians involved in the care, it's very difficult on the front end to determine who is responsible, so the most common scenario is that multiple physicians would be named and then through the course of litigation, the focus of the case gets narrowed. Here, though, because Dr. Andrews was handling the case independently without consulting other doctors directly and not documenting that consultation with the tertiary care center, the focus turned directly to Dr. Andrews.
Brian: That does make sense, and we've talked a lot here about the medical record and that seems to be a very important part of this case, and if the medical record here had fully been documented about the patient encounter, what do you believe, Ken, were the chances that the lawsuit might not have even been filed in the first place?
Ken: As to what were the chances for it to get filed, no one really knows for certain. What we do know is that the plaintiff asserted that Dr. Andrews was negligent for not admitting the patient, not consulting with a cardiologist, and not transferring the patient to a tertiary care center for treatment. Dr. Andrews made efforts to do all these things by seeking to transfer the patient to a tertiary care center and speaking with a cardiologist who was willing to accept the patient, but this information wasn't documented in the record, and we can only speculate whether the case would've been filed if this information had been clearly documented.
Brian: With Dr. Andrews here, is there something that he should have done or didn't do even beyond the documenting that really could've made a difference?
Ken: Well, I think the documentation here was the key. The record contained no indication that any of these efforts were made and that the patient had essentially declined the workup. If all of Dr. Andrews efforts had been documented and the patient's declination of the recommended treatment course had been documented as well, there is at least a good chance that the lawsuit would not have been brought. Instead the plaintiff asserted that Dr. Andrews's after-the-fact testimony which outlined his thought process was contrived and self-serving, and this formed the basis of the credibility attack against Dr. Andrews.
Brian: I got you. So, anytime that a physician goes to manipulate something after the fact or has a change of opinion after the events have occurred that is contrary to what's in the document, that can look pretty bad to a jury, right?
Ken: It can, and this was not a situation where Dr. Andrews manipulated the record. He just did not put the documentation that was necessary to tell the whole story, which allowed the plaintiff to assert that there was a manipulation of his testimony after the fact, but it wasn't a situation like you're describing where someone goes back and modifies the record to indicate something happened that really didn't happen. That's not what we were dealing with in this case.
Brian: Not in this case. Well, and by the fact that he was pretty confident in his care, do you think that Dr. Andrews even really feels like his care was beneath the standard of care or is it a situation where it just wasn't documented appropriately and he really feels like he did nothing wrong here?
Ken: I don't think that Dr. Andrews believed that his care was below the standard of care. However, during the course of the litigation, Dr. Andrews acknowledged that the defense of his case was greatly complicated by the lack of documentation as to all the steps he took in caring for the patient.
Brian: And the interesting thing here is we're talking about a medical record that was inadequate or incomplete and somebody might be thinking, "But the care was the same even if it wasn't documented." Explain to us really how could only a few additional facts or comments that were in the medical record, how could that alter the outcome of the case and make it appear differently to the jury if the outcome was the same?
Ken: The medical record serves many purposes. The main function of the record is to outline the history, the physical examination, the diagnosis and the treatment plan. In this situation, a broad overview of the patient's presentation was documented including the ultimate diagnosis of unspecified chest pain. In the end, the ultimate conclusion reached by Dr. Andrews was documented but the underlying details including the efforts to further evaluate the patient were just not documented in the record. The details such as the fact that the patient had just undergone a workup by a cardiologist and the cardiologist felt that the complaints of chest pain were related to a hiatal hernia were not included. The fact that Dr. Andrews sought to transfer the patient was not documented. This opened the door for the plaintiff to assert that the testimony of Dr. Andrews was not credible.
Brian: It just obviously seems to be so important. Why did he not do it? That is mind boggling to me. It really is that important, isn't it?
Ken: It really is that important, and I think if you look at it from Dr. Andrews's standpoint, he didn't document it because he was probably busy and he didn't feel like he needed to tell the additional facts of the story.
Brian: Got ya.
Ken: But you will often hear the saying that if it is not documented, then it did not happen. We know that this is an overstatement, but the scant documentation in the record gave the plaintiff an avenue for attacking the credibility of Dr. Andrews. This made defending the case more problematic than it should have been with more complete documentation.
Brian: And in these situations, I can't imagine what it's like for a physician to have to go through this experience. I can only imagine the stress and the time and the exhaustion involved in it. Hindsight's always 20/20. Right? So, do you think that after the fact, did he go back and look at important details and think, "You know, maybe I shouldn't have admitted that or omitted it and maybe I should have included it more from the record." Do you think he believed or do you think even in general, did this hamper the ability of the attorneys to really defend this case?
Ken: Dr. Andrews gained an appreciation of how the medical record can have an impact on whether litigation is brought and also how the case is defended. Dr. Andrews felt he acted appropriately in the care of Mr. Smith. However, it became apparent when the allegations were set forth within the complaint that the very things that were not documented in the medical record yet had been done were exactly what the plaintiff was contending that he had failed to do. It raised the spectrum of whether the litigation would have been pursued if the full story had been told. Additionally, the fact that the plaintiff's case turned to an attack on his credibility was not lost on Dr. Andrews and what he did or did not do became less of a focus in the case.
Brian: And you know that's got to be really difficult for a professional to feel like their credibility and their ability as a doctor is being questioned, and they really truly feel like, "I did everything I could, but I didn't adequately document the record, and now I find myself having to defend this." That's got to be incredibly frustrating. Is that something you see often with the physicians that are very frustrated because they really truly feel like I'm really being questioned now and this is going to hurt my future.
Ken: Yes, if you think about the basis of the physician-patient relationship, it's usually built on trust, and in this situation they were coming from a small community so there was a little bit of trust in addition to what you would normally have in a patient encounter.
Brian: That does make sense.
Ken: And so, to have his credibility be challenged on the back end created a lot of concern for Dr. Andrews, and truthfully, he didn't anticipate it.
Brian: You bring up a good point about the small community too because you're not only seeing these patients in the office, but youre' going to see them at the grocery store or at the baseball field, at church, so you're going to have these encounters over and over again and then word's going to spread, so I can really see how that would be difficult. You know, as we get ready to wrap this up, what are some of the main takeaways, Ken? I think just listening to our discussion here, one of the obvious has got to be documentation. That seems to be a big one, but is there any other things there that you think would be really key points that our listeners might be able to understand that they could change in the future to really alleviate them finding themselves in this situation?
Ken: Well, I think the key thing to look at here is that documentation is important, and it is just as much a part of the treatment of the patient as the decisions you're making and treating and developing a treatment plan. It's impossible to document every event that occurs in the physician-patient interaction.
Ken: It's important though, however, to make sure that the key issues are outlined in the record which were not the case here. It's also easy to let the daily workload to have an impact on the quality of documentation, but the physician needs to make certain that the whole story of the encounter is included in the record. In this situation, a few more minutes of documentation could've possibly avoided several years of stressful litigation.
Brian: Ken, thank you for being with us today and helping us review this case.
Ken: Good to see you, Brian.
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. 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.
The contents of this Podcast are intended for educational/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/or change over time. All names have been changed to protect privacy.
About our Guest
Kenneth W. Rucker is Vice President, Claims for SVMIC. Mr. Rucker graduated from David Lipscomb University with a degree in Business Management. Following his undergraduate studies, Mr. Rucker attended the University of Memphis, Cecil C. Humphreys School of Law where he attained his law degree. After law school, Mr. Rucker practiced law with the Tennessee Attorney General’s Office and with the law firm of Manier & Herod in Nashville, Tennessee before joining SVMIC. Mr. Rucker has been with SVMIC since 1999 in various roles in SVMIC’s Claims Department.
About our Host
Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.