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.
Apr. 06, 2018
Episode 010: The Case of Time Ticking Away
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Speaker 1: You're listening to Your Practice Made Perfect, support, protection, and advice for practicing medical professionals, brought to you by SVMIC.
Brian: Thank you for joining us. Today, we're going to be looking at one of our closed claim cases, but before we start, here's the background that we will be discussing today. Like many toddlers, 18-month-old Caroline Jones was in and out of her pediatrician's office with a number of common pediatric illnesses. As is customary in pediatric practices, she saw several of the practice's physicians throughout her numerous appointments.
Caroline had recently been struggling with eczema and contact dermatitis, but the condition was just getting worse. Topical creams did not provide enough relief, and during her July 26th appointment with Doctor Carpenter, her mother reported that Caroline had been scratching the eczema patches. Doctor Carpenter diagnosed Caroline with impetigo, and prescribed a course of Bactrim for ten days.
Caroline's mother brought her back to see Doctor Carpenter on August the 3rd, complaining of fever, some transient episodes of disorientation, and the worsening appearance of the rash on her daughter's face. Her mother also informed Doctor Carpenter that Caroline had recently been bitten by a tick. Doctor Carpenter examined Caroline and discovered otitis media in her right ear. He described her face having annular patches on the cheek. Tinea corporis was felt to have been the cause of the rash on Caroline's face, and an antibiotic was prescribed for her ear infection.
Caroline's mother brought her back to the office the following morning, and she saw Doctor Carpenter's partner, Doctor Reynolds. Caroline's mother reported that Caroline had a high fever overnight, and a splotchy face that morning. During the August 4th appointment, Doctor Reynolds described the rash as maculopapular. He also saw the right otitis media.
Doctor Reynolds suspected Caroline was experiencing an allergic reaction to the antibiotic that Doctor Carpenter prescribed the day before, so he substituted another antibiotic, and counseled the mother that it would take 1-2 days to see clinical improvement in the allergic reaction. Doctor Reynolds did not follow up on the mother's prior report of the tick bite, because he was not aware of it. Doctor Reynolds later admitted that he did not read Doctor Carpenter's note of the prior day's appointment.
Twice that evening, Caroline's mother called the practice reporting that her daughter's fever persisted, and the rash remained unchanged. During the second phone call, an appointment was made for the next day. Instead, the mother ended up taking Caroline to another pediatric practice, and never returned to see Doctor Carpenter or Doctor Reynolds.
Tragically, Caroline was diagnosed with ehrlichiosis four days later, dying from the infection two days after the diagnosis was made. Her mother subsequently filed a lawsuit against Doctor Carpenter, Doctor Reynolds, and their practice. The case was tried, and the jury awarded Caroline's mother a substantial verdict.
So, now, let's get into talking about this case. Today with me is Katy Smith, an attorney here at SVMIC. I'm Brian Fortenberry. Katy, welcome.
Katy: Thanks, Brian. Glad to be here.
Brian: A very sad case, for sure. Before we really get into the logistics of this case, tell us a little bit about yourself, and your time here at SVMIC.
Katy: Well, I'm a lawyer. I'm licensed to practice in Tennessee, and in my past life, I helped defend our physicians. I've been a state volunteer in the claims department for almost 12 years, now.
Brian: Wow. So, you have seen quite a number of cases come and go. This one, you were obviously involved with, and a very sad outcome to a case, here.
Katy: Terribly sad, I think.
Brian: The continuity of care played a major role in this case, that is pretty obvious. If Doctor Reynolds had read his partner's notes regarding the tick bite, because it sounds like he did not, could this case have been defended any differently than it was?
Katy: Well, Brian, I think you've hit the nail on the head with this case, and the facts of this case certainly caused the jury to be very sympathetic to the plaintiff, and that is a challenging position for the defendants out of the gate. So, as a practical matter, the facts on their own were a big hurdle for Doctor Reynolds to overcome. If Doctor Reynolds had read Doctor Carpenter's note from the day before, he would have eliminated that argument against him, never giving it to the plaintiff in the first place.
The plaintiff likely still would have criticized Doctor Reynolds for failing to diagnose the tick-borne infection, but then we're debating the medicine involved, the symptoms, the presentation, and the like, instead of whether or not a doctor read his partner's note from the day before. Juries tend not to be understanding of doctors who overlook a common sense type of task or issue, especially in the setting of a sympathetic case.
Brian: It does sound like, in this scenario, a jury would certainly be more honed in on something they understand, just like you were saying. Not reading the note before, that's outside the scope of the medical practice, there. I would imagine, those are harder to overcome, like you were saying, than maybe even the care of the case, correct?
Katy: It's easy for a jury to understand a plaintiff when they argue, all you had to do was read the prior note.
Brian: That does make sense. And really, it could be the opinion that the child's mother is also maybe a little bit at fault here, because she did not report the tick bite to Doctor Reynolds. So, you could see that, but it does raise the question that it is the partner's job to really provide the same information to another provider, and he didn't read that, by his own admission. So, how is a jury most likely to see this, and make a decision, since she didn't mention the tick bite, but it had been mentioned previously, and the other provider didn't go back and read the notes?
Katy: Brian, one thing to remember about how juries view the facts of a case is that the jury knows the patient's ultimate outcome before the first piece of evidence is presented to them. So, everything the jury learns about the proof of the case is viewed through that lens. We've already established that this case was sympathetic, so here, I suspect this jury didn't fault Caroline's mother at all for failing to tell another provider about the tick bite until it was too late.
That's not a universal rule. I do think there are cases where a jury would agree that a patient has a responsibility to repeat information to subsequent providers, and may even agree that, by failing to do so, the patient is at fault at least partially for her outcome. So, whether or not a jury is willing to charge a patient with at least some responsibility ultimately depends on the facts of the case.
Brian: And these situations, when you're dealing with the death of a child, and you have a parent there, I would imagine that juries are going to be much more sympathetic and give more leniency in that scenario for what the parent said at that time. Would you agree with that?
Katy: Agreed, yes.
Brian: Do you think that there is anything that this physician could have done in the records, there, that might have highlighted a reason for that doctor go back? Maybe drawing attention to the fact that that tick bite was there. Is there anything they could have done, you think?
Katy: I think that was one of the problems with this case, that it was hard for the defense attorneys to argue that it was okay for the doctor not to have gone back and read the prior note. It's just such a common sense thing that we mentioned earlier.
Brian: Sure. Well, unfortunately, ultimately, this mother really was so concerned, obviously, about the care, that she transferred her daughter's care to a whole other practice. Why was the practice not named in the suit? Because we were talking about that earlier. That practice wasn't named, it was only the two previous doctors and their practice entity. If it had been named, do you a feel a jury would have found negligence on the part of the practice it was transferred to?
Katy: Well, actually, the second practice was named in the lawsuit.
Katy: And that practice elected to reach a settlement with Caroline's mother before trial, so the only defendants left at trial were Doctor Carpenter, Doctor Reynolds, and their group.
Brian: So, what were the main, takeaway lessons from this case, that might be able to help other physicians in similar circumstances? Some takeaway points that they really might be able to grasp and help them.
Katy: Well, first, I think this case underscores the importance of providing care that's continuous between providers, even when the providers are in the same group. Some specialties routinely function by having partners see each other's patients. For example, pediatrics, urgent care, family practice, or obstetrics. In those instances, it is a good idea to make sure the physician seeing the patient consults all of the information needed to treat the patient, even if it's just reading the prior office notes.
Secondly, I think this case presents an example of patients seen on multiple occasions during a short period of time. Clearly, something is going on with this patient that has not yet been addressed. These situations may require a physician to step back, reevaluate the patient's presentation, and make sure you aren't missing something.
And finally, this case involves a patient with a number of ongoing problems, skin concerns, an ear infection, and ultimately, the underlying, tick-borne infection. It can be difficult for a practitioner to isolate that one important issue in the presence of multiple ongoing processes. This is another reason for the provider to step back and carefully reevaluate the patient's presentation.
Brian: It does certainly sound like there were things there that potentially could have been done differently, and hopefully other policyholders, one of the beauties of being able to do things like this, maybe gain some information from these types of situations, to be able to make changes in their own practice, to mitigate some of that risk in the future.
Katy: We certainly hope so.
Brian: Absolutely. Katy, thank you for joining us, today.
Katy: Thanks, 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 advices, 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
Kathleen W. Smith is a Senior Claims Attorney in the Claims Department of SVMIC. Ms. Smith is a licensed Tennessee attorney admitted to practice law in all Tennessee state courts and before the United States District Court for the Middle District of Tennessee. She is a member of both the Tennessee Bar Association and the Nashville Bar Association. Ms. Smith manages litigated and presuit claims brought against SVMIC policyholders in all jurisdictions where SVMIC insures medical providers. She also advises SVMIC policyholders with the varied legal, regulatory and risk management issues arising during the day-to-day provision of healthcare. Prior to joining SVMIC, Ms. Smith practiced law with a defense litigation firm, defending SVMIC policyholders in medical malpractice lawsuits.
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.