Eight Little Words

Ann S. Lofsky, MD, Governor Emeritus

Some of the phrasing in medical dictation is so standardized and routine that physicians give little thought to what the words really mean. No wording will be more carefully scrutinized, however, than that in a medical record involved in a malpractice trial. Physicians may find themselves called upon under oath to explain exactly what they were thinking during a period of time many years back, with only their own words in a patient’s chart as evidence. The following case hinged on a single phrase that many physicians include in their dictations every day.

A 72-year-old man presented to an emergency room complaining of neck, back, and shoulder pain of one week’s duration. The physical examination was generally normal, and the cervical spine films showed degenerative changes without evidence of acute injury. He was discharged, but he returned several days later complaining of urinary changes. The man was admitted under the care of a family practitioner with a diagnosis of urinary tract infection. This was the man’s first medical evaluation in decades. He was additionally diagnosed with diabetes and high blood pressure, and appropriate treatment was started.

On day 10 of the hospitalization, our insured orthopedist was asked to see this patient for the first and only time for his complaint of neck pain of one month’s duration. The man gave no history of injury. Tenderness was noted over the cervical spine, especially at C6-7 and C7-T1. There was moderately limited rotation of the head and decreased neck extension to 10 degrees. Deep tendon reflexes were normal in the lower extremities but absent in the arms. Upper extremity motor strength was decreased as well. A review of the x-rays showed severe degenerative arthritis with facet narrowing, foraminal stenosis, and disc space irregularities.

The orthopedist’s impression was of a pleasant elderly male with severe neck pain. He recommended intravenous ketorolac to reduce inflammation and physical therapy. He suggested that the patient might require long-term non-steroidal anti-inflammatory medication. The last sentence of his dictated and typed consultation concluded, “I thank you for asking me to evaluate this gentleman, and I will continue to follow him with you.”

Was There Anything Negligent About the Orthopedic Evaluation of This Patient?

Basically, all parties conceded that the initial examination was appropriate, but the plaintiffs argued that the phrase “I will continue to follow him with you” indicated that the insured’s involvement did not end on his one and only visit and made him liable for subsequent events.

The family practitioner stated that he expected the insured would see the patient every day. The orthopedist, however, was going on vacation the next day, and he was not intending to see the patient again unless there was some deterioration in his neurological examination or a worsening of the pain. The insured did not see a need to alert his partners that the patient might require evaluation in his absence.

What Difference Would It Have Made If the Insured Had Followed This Patient?

A bone scan obtained the following day showed no evidence of focal infection of the cervical spine. An anesthesiologist was consulted for pain control, and it was suggested that nerve blocks be performed as an outpatient. The patient was discharged home after 20 days in the hospital. The anesthesiologist ordered an MRI to rule out nerve entrapment and performed a suprascapular nerve block. The man was placed on oral steroids to decrease inflammation.

An MRI was performed one week later. It revealed large epidural abscesses in the mid cervical spine and lumbar area, with minimal cord compression. The man was immediately readmitted to the hospital under the care of a neurosurgeon. Surgery was scheduled for the following day, but during the night he became septic and hypotensive and developed quadriparesis.

The surgery was performed, and both abscesses were evacuated. The patient regained function in his lower extremities. On postoperative day 10, however, the man developed swelling in the cervical area, and an MRI showed re-accumulation of the cervical abscess. A cervical diskectomy with drainage of this abscess was performed, but the patient remained permanently quadriplegic postoperatively.

The plaintiff’s expert orthopedist testified that the insured’s evaluation was incomplete. He felt that there was evidence of cord compression as early as the first exam, the signs being upper extremity weakness and impaired bowel and bladder function. Had the insured followed the patient, he would have seen the signs worsen. The plaintiff’s expert stated that any patient with a history of fever and spinal pain should have an MRI to rule out an abscess. This expert opined that ordering the MRI sooner and making the diagnosis of an abscess earlier would have improved this patient’s prognosis considerably. He also criticized the insured for not following up on the patient as he stated he would in the consult. This expert felt that if the insured had not indicated he would follow the patient’s care, the family practitioner might have been more aggressive about calling him back.

A panel of orthopedic defense experts, however, unanimously opined that the insured had complied with the standard of care. This patient had suffered for years from degenerative joint disease of the cervical spine, and the pain had always waxed and waned, consistent with the presenting symptoms. They felt that the uncontrolled diabetes and the urinary tract infection both contributed to the seeding of the abscess, which might not have even occurred by the time the insured saw the patient.

The orthopedic defense experts did not agree that the insured had a duty to follow up after his initial consultation. They were in agreement that the last line of the consultation was simply standard dictation practice and in no way indicated that the orthopedist would see the patient on a daily basis. The defense experts believed that if the primary care physician felt that further orthopedic evaluation was warranted, it was his responsibility to actively arrange for it.

Should This Case Be Tried?

The highly regarded defense experts were supportive of the insured. He was felt to be likable and confident, and he presented well in his deposition. The treating neurosurgeon who drained the abscess felt that it was the hypotension—not the cord compression—that caused the quadriplegia. In light of the above and the insured’s wish to defend his own care, it was felt that the case was defensible at trial. The neurosurgeon and the anesthesiologist had settled out of the case for near the policy limits, leaving the insured as the sole defendant.

At trial, the insured was asked by the plaintiff’s attorney why he had not followed the patient as he had advised in his note. The orthopedist conceded that if he had been in the area instead of on vacation, it is likely he would have gone back at some point to see the man on his rounds, but he had not felt that it was necessary to ask one of his partners to do so in his absence. He emphasized that the practice where he worked at the time would have encouraged the primary care physician to call him as needed.

The jury deliberated for two days before delivering a policy limit verdict against the insured. The jury felt that the insured had essentially abandoned a patient in need of his services and that he had failed to assist the medical team in reaching a definitive diagnosis as he had indicated he would in his consultation.

Consulting physicians would be well advised to make it clear to the requesting physician, both verbally and in writing, whether they plan to continue to physically round on patients or whether they expect to be reconsulted if necessary. A patient’s care might depend on it.


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 considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J8373A 07/11

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