"What Can We Learn?"

Articles by Carol M. Romano in the NCMIC Examiner

Summer 2009, in response to:

"Credibility of Doctor and Computerized Records"

• More below:
"Failure to X-Ray Impacts Case"
"Off-the-Record Treatment Hinders Doctor's Case"

Litigation Knows No Boundaries. This case illustrates that believing that “my relative would never sue me” is simply wishful thinking. Some plaintiff attorneys, in fact, encourage potential clients to sue their relatives – claiming it’s “nothing personal” and this is the reason they have insurance.

What they do not discuss is the psychological trauma of being sued, especially by a family member. Cases involving relatives forever change the family dynamics. The scars to the psyche and the underlying emotional damage are never erased, no matter what the outcome of the case. That’s why the highest level of care should be provided to all patients, regardless of relationship.

Records and Perceptions Are Crucial. The outcome of a chiropractic case often hinges upon the quality, accuracy and contemporaneous nature of the records.

In this case, Dr. Floyd’s records appeared self serving. What’s more, Dr. Floyd lacked credibility, due to the stark contrast between defense witness testimony about throwing out the computer and the records produced.

This caused a cloud of suspicion over his version of the chain of events in this case.

Depositions Are Key. While the trial itself is clearly important, many aspects of a trial (e.g., evidence and cross examination) are predicated on what happens at the deposition long before the court appearance. Therefore, doctors involved in any litigation should give priority to the deposition and the records that will formulate the basis for what is presented in court.

Limits of Coverage Make a Difference. Dr. Floyd benefited from having adequate coverage in this case. Because he had $1 million in policy limits, his attorneys were able to mediate the case.

If Dr. Floyd had lower coverage limits, there would have been no incentive for the plaintiff to mediate, and the case would have gone to court. Then, Dr. Floyd would have been burdened with any amount awarded in excess of his policy limits.

Spring 2009, in in response to:

"Failure to X-Ray Impacts Case"

Compliance. In much the same way the old adage in real estate is “location, location, location,” the truism for clinicians is “compliance, compliance, compliance.” It is obvious that Sam Jones was not a very compliant patient. Therefore, he was essentially “in charge” of his care without the concomitant responsibility and risk. By law, this responsibility and risk is borne by the licensed healthcare provider.

Red Flags. Some symptoms should create a heightened suspicion in the mind of the doctor. For example, when a doctor sees a patient with a presenting complaint of “pain radiating into both legs and feet,” it should be a red flag to the doctor of a potentially serious condition – no different than “weight loss and thirst” would prompt a clinical suspicion of diabetes. Doctors who see patients with these symptoms should be triggered to consider additional diagnostic testing. In this case, had additional testing been performed, the patient’s outcome might have been different.

Cooperation and Consultation. While he was being treated by Dr. Dalke, Sam Jones also was being seen by his internist for hypertension and weight loss. Ideally, Dr. Dalke should have had a working relationship with this physician, but regardless he could have called the internist to discuss their mutual patient. Such a call might have generated a discussion about the patient’s symptoms and his reluctance to comply that would have elicited further testing.

Guidelines. While the clinical perspective on whether films are needed for every patient has changed considerably over the past decade, there are still times when a doctor must consider additional diagnostic evaluation. In this case, though Dr. Dalke was exercising caution in not X-raying the patient, Sam Jones’ weight, age, symptoms, non-compliance and type of occupation should have been indicators of the need for further evaluation.

Low Policy Limits. Review your policy regularly and select limits that not only protect your patients but also yourself in the event of a malpractice allegation. In this case, the doctor had very low limits of coverage that left his assets exposed and restricted his options. His low policy limits left less room for negotiation or a compromise settlement.

Winter 2009, in in response to:

"Off-the-Record Treatment Hinders Doctor's Case"

Treatment should not be provided “off the record.” When records are silent, there is always the potential for suspicion. Clearly, Dr. Gold’s treatment outside the scope of the worker’s compensation case raised doubts about his credibility. Dr. Gold’s concealment could have cost him the case had his defense team not been so proficient.

The issue of informed consent can no longer be ignored. There is a strong movement to inform patients of the risks and benefits of any therapeutic intervention. Some states have mandated the informed consent process while others strongly encourage it as being in a patient’s best interest. From a risk management perspective, it can also be in the doctor’s best interest. At NCMIC, an increasing number of cases now include a corresponding allegation of “failure to provide and obtain informed consent” as part of the claim.

The risks of adjusting spinal fusion or anomalies must be considered. Fused vertebrae can weaken the areas above and below the fusion. Steps should be taken to understand the altered biomechanics before performing any manipulation or mobilization. Dr. Gold was performing high-risk manipulation by adjusting this patient. The radiographs were incomplete, and Dr. Gold didn’t fully understand the patient’s biomechanics before treatment. Though manipulation can be beneficial in helping restore proper motion in dysfunctional areas of the spine, doctors should exercise extra caution to minimize the associated risks.

Recordkeeping is vital not only for risk management but also to assist other professionals who may need to take over the patient’s care. In this case, Dr. Gold’s records were both meager and intentionally deceptive. He did not record notes on the therapeutic treatments performed or their progress and purpose. Because the expert consultants condemned Dr. Gold’s records, his defense had an additional hurdle to overcome in his case.

Refusing to perform tests requested by patients is risky. Gail Hill alleged she asked Dr. Gold to give her a referral for an MRI and that he refused. His notes were silent on whether he actually refused and, if so, his clinical reasons for doing so. Any time a patient requests a test, a second opinion or a change in therapy, it should be given serious consideration. Patients ultimately have the right to have their care addressed to their satisfaction. In addition, the doctor’s rationale for or against agreeing to a patient’s request should be fully documented.