Malpractice Consult

April 24, 2000

When you don't remember the patient who's suing you; How your payment policy could foster a lawsuit.

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When you don't remember the patient who's suing you

By Lee J. Johnson, JD

Q:I'm being sued by the family of a patient I saw only once almost two years ago. My records don't indicate anything out of the ordinary about his office visit, and I honestly don't even recall it. The family alleges that I'd ignored the patient's complaint of chest pain. I know that can't be true. Is it an acceptable defense to present evidence of how I routinely handle complaints of chest pain?

A:Like many issues in the law, the answer is sometimes Yes and sometimes No. Malpractice suits often involve a factual dispute over whether something was—or wasn't—done by the defendant doctor. If the doctor's records are sketchy, he may argue that he routinely does the thing in question. Then the court has to decide whether to allow the doctor to testify about his pattern and practice with patients in similar circumstances.

In a recent Virginia case, a patient died in her sleep from cardiac arrest the evening following a stress test. According to her family, the patient had complained of tightness and pain in her chest during the test. In response, the cardiologist administering the test gave her nitroglycerin, and the chest pain subsided, the family said. They added that the physician told them the patient's condition was normal, and she would feel better once she returned home for some rest.

However, the patient's chart contained no mention of chest pain, and the cardiologist had no recollection of the patient's condition. Neither did the diagnostic technician. A nuclear technologist who did the final scan of her heart after the stress test said that the patient had complained of indigestion but not chest pain. Medical experts testified that it would be negligent to release a person complaining of chest and arm pain without further evaluation.

During the trial, the doctor testified that whenever someone complained of chest pain, he would routinely obtain another ECG and perform a physical examination before releasing the patient. The diagnostic technician testified that it was her practice to immediately request assistance from the cardiac unit or emergency department.

A jury found for the physician, but the patient's family appealed, arguing that testimony about the doctor's routine procedure shouldn't have been admitted at trial. The family argued that the testimony improperly allowed the jury to speculate that because the defendant had provided proper medical care to other patients, he therefore must have provided the same care to the deceased. The doctor's attorneys responded that when a physician has no memory of a patient, evidence of his routine in dealing with a similar situation is relevant in establishing his conduct toward that patient. So the doctor's argument at the trial was that the complaint of chest pain never occurred. If it had, he would have responded appropriately.

The Virginia Supreme Court ordered a new trial, holding that evidence of a doctor's general habits isn't admissible. According to the court's decision, the testimony wasn't directly relevant to whether the patient had, in fact, complained of pain, whether the doctor had negligently released her, and whether that release had caused her death. However, a dissenting justice noted that most other jurisdictions would have allowed the testimony. He wrote that evidence of general habits, such as that a person is generally a careful motorist, is, indeed, inadmissible. But evidence that a person regularly reacts to a specific set of circumstances in the same manner should be allowed, he argued.

Better documentation by the physician might have prevented this lawsuit. That's a lesson office staff needs to learn, as well. Suppose a patient fails to return for a follow-up appointment, her condition worsens, and she sues for malpractice. If the receptionist had documented that she called the patient and attempted to reschedule her, that would probably be an effective defense. Compare that with a scenario where the receptionist testifies that it's her usual practice to call for every missed appointment. That testimony may not be admissible. Even if it is, a jury may well be skeptical.

It's just easier, and better medicine, to document thoroughly.

How your payment policy could foster a lawsuit

Q:My colleague and I have separate practices, but we share staff and expenses in the same office suite. Recently, a patient with no insurance called for an appointment with me. I overheard our scheduler tell her she'd have to bring payment for an old debt to my colleague before I could see her. I was horrified and talked to the scheduler, who told me that my colleague had given her these instructions.

Isn't this policy unethical—and potentially dangerous? What if a patient I've seen in the emergency room fails to return to me for follow-up because she owes my colleague money? Shouldn't we avoid asking patients for each other's old debts until the patient checks out after a visit?

A:You're right to be concerned. Once a doctor- patient relationship is established, either in the ER or in the office, refusing to see a patient could constitute abandonment. You cannot abandon a patient without giving adequate notice and continuing to treat ongoing conditions until the patient has found another physician. Imagine how a jury might react once they learned that an injured patient didn't receive needed care because she owed your colleague a few dollars.

Review your agreement with your colleague. Why should a debt to one doctor affect the practice of another? Even if you share expenses, you have an independent duty to your own patients. If your colleague wants to strong-arm patients, tell him to hire a collection agency and to butt out of your practice. Don't let his desire to recoup old debts compromise your patient care.

Another concern: If patients have the perception that your practice is a partnership, your colleague's collection policies could cause bad will or litigation against you. Make sure that you have separate letterheads and that the receptionist lets patients know that you have separate practices.

 

The author, based in Mount Kisco, NY, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Carol Pincus, ed. Lee Johnson. Malpractice Consult. Medical Economics 2000;8:92.