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.
May. 18, 2018
Episode 016: The Case of Nothing Noted
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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 welcome to our podcast. My name is Brian Fortenberry, and today we're going to be looking at a closed claim. With me today to decipher what some of this means is attorney J. Baugh. J., thanks for being here.
J. Baugh: Well thank you for having me Brian, it's good to be here.
Brian: Well before we get started J., tell us a little bit about your background, your time here at SVMIC, and pretty much anything you wanna tell us.
J. Baugh: Okay. Well I have a degree in accounting, and after getting that degree I became a CPA. I have a license to practice as a CPA currently, and then I went to law school, passed the bar exam, and became an attorney. So I'm now both a CPA and an attorney. I've been here at State Volunteer since the year 2000. Started in the claims department and I'm still there. I've been managing files such as this one over the last 17+ years.
Brian: Well J., we owe it to our listeners, often when we do these we take a look at the case, and talk about the breakdown of it, but let's do the background here first. So I'm going to take a few minutes to read what this closed claim was about.
J. Baugh: All right.
Brian: Eliza James was a 70 year old female, post CABG at age 67, with multiple health concerns as well as evidence of early dementia. Mrs. James was placed on a low-dose aspirin, Coumadin, and Plavix by her cardiologist, Doctor Aaron Smith, for atrial fibrillation. No clear-cut plan for lab work or anticoagulation parameters were set out in her chart. Doctor Smith is a very talented board certified cardiologist who employs several nurse practitioners in his busy practice, and they all saw Mrs. James. Sporadic PT and INR levels were done for three years following Mrs. James' CABG. She ultimately required a femoral artery angiogram. Doctor Smith noted afterward that she should be on full anticoagulation therapy. Her prior prescriptions were refilled, but again, no clear orders or lab parameters were noted in her chart or in the discharge orders after the hospital procedure. Doctor Smith later testified the discharge nurse should have included the lab orders. Her last levels were drawn about two months prior to the procedure.
Three weeks later, Mrs. James was seen in routine follow-up by Doctor Smith's nurse practitioner. Her findings included bruising, the extent and location weren't recorded, and that Mrs. James had recently restarted Coumadin in addition to her aspirin and Warfarin. The NP may have realized that no labs had been ordered by Doctor Smith, and she apparently gave a written lab order to Mrs. James. The draw was not done for more than 10 days, and we do not know what counseling was given to the patient about its importance. Ironically, just five days later Mrs. James was seen in the ED by her own PCP, Doctor Kelvin, who charted that she was on Coumadin and aspirin. She was given Keflex for an infected insect bite, which allegedly potentiated the effect of her anticoagulants. The follow day, Mrs. James was seen by Doctor Smith, who charted, "Patient is off Coumadin but did not know why." Doctor Smith's office refilled the Coumadin on a phone request from the pharmacy. No mention was made of the pending order for PT and INR testing, nor was the patient educated about it. Four days later, Mrs. James had her blood tested at the hospital lab per the order provide by Smith's nurse practitioner 10 days earlier. The results revealed critical levels, and the hospital lab employee called Doctor Smith's office. Since it was after hours, the answering service contacted Doctor Smith.
We are uncertain about what happened at this point, but the report was faxed to the offices of both Doctor Smith and Doctor Kelvin. It was scanned into the PCP's office notes without comment, and no action was taken. The fax with critical values was later reviews by a nurse at Doctor Smith's office, who wrote, "Handled by Doctor Smith over the weekend," and filed it into the chart. Doctor Smith testified that he called the hospital lab technician and instructed her to have Mrs. James discontinue her Coumadin. This was disputed by the technician, and there was no telephone record indicating such a call. Mrs. James' family testified that they were not notified by anyone of the results, or told to discontinue the Coumadin.
Three days later, Mrs. James was seen in her PCP's office. There was no medication review and none was listed. She was given Prilosec, which allegedly potentiated the effects of anticoagulants. Though the faxed lab report was available, it was not addressed. Keep in mind that the PCP was prescribing Aricept for diminished mental capacity, Alzheimer's type. His chart noted digitalis toxicity two years earlier and recommended that she not live alone.
One week later, Mrs. James was seen by her PCP's nurse practitioner, who also noted bruising. Again, there was no update done of her medications, and no labs were done. She was given a prescription for Omnicef, which allegedly potentiated the effects of anticoagulants. The following day, Mrs. James was seen in Doctor Smith's office by his nurse practitioner. The chart once again documented, "Off Coumadin. Patient does not know why." However, the notes also indicated that she was taking Coumadin along with Warfarin and aspirin daily. There was no discussion of the recent labs. Later that same evening, Mrs. James was taken to the ED with complaints of vomiting and abdominal pain. Her pro time was greater than 200. The INR was greater than 20. Her PTT was greater than 100, and she had elevated white blood cell and low red blood cells. These values were higher than upper threshold capacity of the hospital's equipment. She was aggressively treated but expired two days later, allegedly from Coumadin toxicity. J., I tell you, this is a tragic story it seems...
J. Baugh: Yes, it is.
Brian: ...and a tragic case. We have a situation here where it seems like we had a lot of blood thinners. What was the outcome of this case?
J. Baugh: Well, you might not be surprised to know that this case was settled prior to going to trial. We had a mediation in which we settled the case on behalf of Doctor Smith and his practice because of the actions of his staff. We had to settle this case at mediation. Now just a quick review of some of the things that you mentioned in the fact pattern that you read to us that I think contributed to the need to settle this case rather than try it. I think the first thing that comes to mind is the patient had a diminished mental capacity, Alzheimer's type. That's going to affect communication with the patient. We talk so much in our cases about communication doctor to patient, doctor to staff, staff to patient. That's a major factor that needs to be considered, in the defensibility of this case, is the fact that the patient had a diminished mental capacity, Alzheimer's type.
Brian: That is a great point to make, because as I was reading that, I really didn't even think about that, but communication is something we talk about again, and again, and again. When you're relying on a patient that has altered ability to communicate, that makes the situation even more difficult.
J. Baugh: Yes. You have to communicate with that type of patient in a particular way. You have to have very good communication with the caregiver of the patient, whether that's a family member or someone's who's paid to take of the patient, whatever that might be. You're going to have communication on several different levels with that type of patient. And then there were some other factors on the case. There was no plan for the lab work that was documented. There was no education to the patient about the importance of the lab work. We have this entry in the chart of Coumadin plus aspirin plus Warfarin. I don't really know, we never were able to determine whether that was an accurate note in the chart or not. Was the patient really on all three of these? Which would have been tragic. Or is this a bad note in the chart, which is also indefensible. Either way you go with that, it doesn't really help the defensibility of the case. We also see, "Off Coumadin, but didn't know why." That goes back to the patient's diminished mental capacity. That's why she didn't know why she was off the Coumadin, because it was difficult for her to remember things, and we see that note in the chart repeated over and over again. It looks like sloppy record keeping in a way. That something was just cut and paste from time to time to time, and not really reviewed by someone who was familiar with the chart. You also mentioned on a couple of occasions where there were medicines that were potentiating the effect of anticoagulants.
Brian: That was something that was said over and over again. It seems like every time we would get a different medication for whatever was going, from an insect bite to you-name-it, it was mentioned, it potentiates the anticoagulants.
J. Baugh: That's right. That's difficult to defend, not only from a medical standpoint, but it also calls into question other things that are in the chart. If there's not good coordination between the type of medicine this patient is taking, then it makes you question some of the other things that are going on with the patient, and how accurate are those? How much thought has been given to those types of decisions as well? It calls into credibility everyone that's involved, not just from a medicine standpoint, but from a reliability standpoint as well.
Brian: You know, I think the old adage of, one bad apple can ruin the entire pie. If you have this over and over again, and it looks like bad documentation or lack of follow-through, or whatnot, that it calls into credibility the entirety of the chart. Is that possible?
J. Baugh: I think so. I think if you were able to address that concern in the chart and you didn't have that in there, then it would make the rest of the chart more credible, make it more believable. But because you've got that one entry in there, or maybe the same entry several times, then it causes the jury to wonder, "How much can I even rely on any of this chart?" That makes the case much more difficult to defend. We also have this issue of the primary care physician not taking any action on the report of critical lab values. As I recall, what happened in this case was the lab values were sent to the primary care physician, which was absolutely something that needed to be done, but it seems that it was just placed in the chart and no one looked at it. There should be some sort of protocol for someone to review those lab values, because they're usually marked pretty well as to which of those lab values are outside the norm. Are they too high, or too low? Someone in the PCP's office ought to be reviewing that, and if they see something that's out of whack, they ought to talk to either a mid-level provider, or the physician, and say, "Does this need to be addressed by our office, even though we're not the ones that ordered the test?" Because once you have that information, if you don't act on it and you don't have a good explanation why you didn't act on it, the jury is not going to like to hear that testimony at all. There's also a note in the chart, "Handled by Doctor Smith over the weekend." What does that even mean?
Brian: I was going to say, that is so vague. I don't even really understand what that is.
J. Baugh: That's right, and we'll talk about that a little bit more as we get a little further along. There's also no phone record of Doctor Smith's order to cancel the Coumadin. He claimed that he canceled it at one point, but there were no phone records about that. The family testified that they didn't know about that. That tends to add credibility to the side that's arguing that it didn't happen because the doctor didn't have good documentation of the phone call that he claims happened.
Brian: There's a lot of talk about labs here, and either them being there, or not being there, or faxing them. Should the labs ultimately have been repeated by Doctor Kelvin or his nurse practitioner you think?
J. Baugh: I don't think it was really mandatory that he repeat the labs, assuming that he considered them to be reliable. But I do think that the critical values that were presented on those labs should have been followed with the patient or the family, or someone should have acted upon those, even though they weren't ordered by the office. Sometimes we have physicians that say, "You know, I just get so much paperwork in here, and I get so many faxes in here. There's so much information coming in here," and that's a legitimate concern that physicians offices have about so much information coming in. But if you're at trial, they're only going to be talking about this one piece of paper, or these two or three pieces of paper. They're just going to be looking at those particular lab values. A jury does not want to hear that you were too busy to review, or that you couldn't have someone in your office to look at that for you. That's not a very good defense. I don't think the labs had to be repeated, but there should have been some action taken on those lab values, or at least some sort of documentation that they were reviewed and then not acted upon because the doctor didn't feel it was necessary.
The nurse practitioner also noted some bruising. That apparently was of a sufficient nature to document that it happened. But again, there were no alarms that were raised as a result of it, just like there wasn't with the lab values. It could be in the situation that the PCP was more familiar with the patient and could have had some worthwhile communications with the patient and the family members to address that situation. But unfortunately, it was just simply documented, and it doesn't appear there was any follow up with that.
Brian: We talked early on in our discussion about communication and potential problems with communication. It really seems to be one of the biggest factors contributing to this case. What would you advise for improved communication in this situation? Or maybe for our listeners in similar situations, because they may not find themselves in this exact situation. How could we improve the communication here?
J. Baugh: A word that you hear used a lot when it talks to communicating within a staff is teamwork. It seems to be an overused word, but it's used a lot because it applies in a lot of situation. You just really have to have a team that works together, that is on the same page in terms of how they're going to communicate with each other. There has to be a team of reliable, responsible people within the office, who are all understanding that they're working towards optimal care for the patient. That takes us back to what we talked about minute ago. When it comes to, "Doctor Smith handled over the weekend." That note in there, "Doctor Smith handled over the weekend." What exactly does that mean? Does it mean he sent her to hospital? Does it mean he withheld the Coumadin? Does it mean he talked to the family? That's not a very descriptive entry in the chart, and so that tends to show that maybe the staff is not communicating very well with each other, and that they don't understand what everyone else is doing in terms of being able to treat the patient.
The patient's chart needs to contain results of testing, diagnosis and treatment plans, and those sort of things. In some states, there are rules that talk about what needs to be documented in the medical record. For example, it will say something like, "Medical records should have information that's necessary for a reviewing physician to be able to provide continuous, or continuity of care to the patient." One of the goals with good documentation in the chart is not just for the doctor who's making the entry in the chart to have his memory refreshed when he treats the patient later, but he has to think about the fact that there may be subsequent treating physicians who are going to read that note. They need to know not only what the doctor did but why he did it, because it might be information a subsequent treating physician would need in order to be able to properly treat the patient. You need it not only from the standpoint of the fact that your medical board might require that you document it that way, but that rule is obviously there because you want to provide good care to the patient.
Brian: It really is to the point of, in this situation maybe Doctor Smith knows exactly what he's talking about when he says in the chart, "Doctor Smith handled over the weekend." Maybe he knows exactly what that means.
J. Baugh: That's right. He probably does know what that means.
Brian: The problem is that let's say Doctor King that comes in two days later has no idea what that means.
J. Baugh: That's right. That could mean anything.
Brian: Just like you and I. I think your point is very prudent, that you have to document like someone else is going to have to take over this case for you, and they're really going to need to know what's going on.
J. Baugh: That's right. One of the thing to mention with Doctor Smith, there was this question about this order to discontinue the Coumadin. He claims that he did that in a phone call but there wasn't any documentation of it. That's another thing that I think could have helped the defensibility of this case, is if there were good protocols in place for documenting a phone call that's taken after hours. There needs to be some sort of plan in place in terms of how that's documented on the note itself, and then how that note gets transferred over into the patient's chart. One thing that State Volunteer offers would be to have after hours message pads. We have those available to our insureds. They can call State Volunteer and ask for those, or they can go to our website and log on using their account information, so that we know that it's actually one of insureds. It's asking for this, and then we can mail those to them at no charge. That gives them some after hours message pads that they can have at home, so that they can document if they take a call after hours, and then that will give them some documentation they then take back to the office and put in the chart once they get back to the office.
Brian: That sounds wonderful. We can put additional information in the show notes regarding...
J. Baugh: That's a good idea.
Brian: ...these, so that physicians can get in touch with us and get their own copies of those. J., I really appreciate you taking the time to be here with us today and discuss this case. Thanks for sharing with us.
J. Baugh: Thank you very much. It's good being here.
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. Policy holders are urged to consult with their personal attorney for legal advice. 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
This closed claim study was completed by Stephanie Hatchett but was turned over to J. Baugh to discuss on this podcast episode. Stephanie Hatchett is a senior claims attorney in SVMIC’s claims department. She received an AA degree from Freed-Hardeman (’77) and BS from Lipscomb University (’87) in geriatric social work. During law school, she worked in both medical and legal offices, developing a passion for med-mal defense work. After earning her JD from the Nashville School of Law in 1996, Stephanie ran her own family law practice for seven years. Still drawn to serving the medical community, she was delighted to join SVMIC in 2003 and enjoys the opportunity to assist our insureds daily.
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.