An incident with an unsatisfactory outcome, coupled with an after-the-fact mistake in judgment on your part can mean disaster in the courtroom—even when medical facts indicate that you did nothing wrong.
In this case, a family practitioner had managed the adult-onset diabetes of a 39-year-old C.P.A. for 12 years. Markedly hypochondriacal, the patient had been hospitalized briefly a year earlier for a single episode of bleeding from a duodenal ulcer. He had experienced frequent bouts of epigastric distress since his teens, which the doctor attributed to "indigestion."
The patient telephoned his doctor on a Thursday evening, complaining of "lower chest pains." He was seen that same evening in the physician’s office, where the doctor obtained a history that had similarities to the patient’s previous complaints of "indigestion." An electrocardiogram (EKG) tracing, the first done on the patient in 2 years, proved normal.
The office record entry stated: "Continues to be extremely anxious about bodily complaints. Currently has epigastric distress again." The physical examination was normal, and the doctor signed his name four lines below the entry.
Two days later, while playing in a neighborhood baseball game, the patient died suddenly of an acute myocardial infarction. A suit was filed 10 months later. Following receipt of the summons and complaint, the doctor decided to clarify things on the office record. Using the same pen with the same color ink, he wrote on three lines below the original entry and above his signature: "Because patient so anxious, suggested he telephone Dr. Smith in A.M. and see immediately. In meantime, told to rest and not to go to work." Dr. Smith is a cardiologist.
A cardiologist who reviewed the case agreed with the defense attorney that it was quite defensible. The fact that the defendant ordered an EKG tracing exhibited a high standard of care, particularly since the patient was comparatively young and had experienced similar complaints over a period of years.
In the course of his courtroom testimony, the doctor mentioned his concern that the patient, being a diabetic, might conceivably be experiencing a cardiac problem. He testified that he didn’t take this too seriously. Nevertheless, because the patient was somewhat agitated, the physician believed a consultation was appropriate.
The physician did not inform his attorney prior to the trial that the last few lines on the record were late additions. However, the plaintiff’s attorney put a handwriting expert on the stand who was clearly able to establish record alteration. (Ink and type can be accurately dated.) The defendant, when recalled to the stand, conceded that the addition had been made and said it accurately reflected his conversation with the patient. Following the doctor’s admission, the defense was forced to reassess its position, and while the jury was in deliberation, a settlement agreement was reached for an amount in the $500,000 range.
Conversations after the trial indicated that had the record alteration not occurred, the outcome would have been a verdict in favor of the defendant. In the wake of the alteration, however, seven jurors had decided against the defendant and three others were leaning in that direction. Jurors who were willing to discuss their decision believed the verdict would have been in the same range as the settlement. The decision, the jurors indicated, was based on their belief that the record alteration reflected an awareness on the doctor’s part that he had deviated from the due-care standard by failing to obtain immediate consultation.
What should the doctor have done? Under the circumstances, assuming the conversation with the patient actually took place, the best course for the physician would have been:
However, when there is any inference of an attempt at deception, an otherwise perfectly defensible case may be lost. Clear evidence of alteration of a record automatically makes the case almost impossible to defend.
By Mark Gorney, MD, FACS, Governor Emeritus (retired).
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.