Don’t Elevate an Honest Mistake To Something Worse

Doctors make mistakes, and mistakes are not easy to accept. After all, medicine is a profession dedicated to doing good while avoiding harm. But if a simple mistake in the practice of medicine turns into an intentional act in the practice of deception, nothing good can result.

Dr. OS is an orthopedic surgeon who scheduled a middle-aged gentleman for a right trigger thumb surgery after securing appropriate consent. In the surgery room, however, Dr. OS performed a right carpal tunnel syndrome repair and forgot to perform the trigger thumb procedure. In recovery, Dr. OS realized the error and returned the patient to surgery to perform the trigger thumb release.

In his operative report, Dr. OS noted that “it would be prudent because of occasional numbness and tingling that the patient experienced that was characteristic for carpal tunnel syndrome, that the patient undergo a prophylactic right carpal tunnel surgical. Unfortunately, I had not discussed my thought process with the patient and his wife.”

In a Notice of Intention to Bring Action Based on Professional Negligence (also known as a “90-Day Letter”) the patient’s attorney wrote to Dr. OS alleging that his client “was scheduled for right trigger thumb surgery and you performed a right carpal tunnel surgery by mistake. After discovering your mistake, you then returned my client to surgery and performed a right trigger thumb surgery. The unnecessary right carpal tunnel surgery has caused injury and pain and suffering to the right wrist and hand of my client.”

As the investigation into the claim progressed, the patient’s attorney criticized Dr. OS’s operative report as untruthful. In a letter demanding a modest settlement, the attorney wrote:

“Of course, a denial of a mistake as hinted in the operative report could make the claim more valuable. As we know, a physician has an affirmative and fiduciary duty to a patient to accurately report the patient’s condition and the basis for the surgery. I believe that a potential low-grade fraud cause of action exists in addition to the malpractice and lack of consent issues.”

By this time, CAP had advised Dr. OS in a letter that under the terms of the MPT Agreement, CAP denied any obligation to defend or indemnify him “where any medical records of any person have been created, altered, or modified by or at the direction of such MPT Member, with an intent to defraud or deceive.” Article VIII, Section 5(a) (7).

Because the patient’s injuries from the unnecessary surgery were short-term, the claim resolved prior to actual litigation – but not before exposing Dr. OS to the risk of losing all his MPT coverage.

When the membership voted to exclude MPT claims defense and payments in cases involving altered or deceptive records, it recognized that a physician exposed for altering a medical record loses all credibility. In short, MPT needs to defend you with the records intact.

To err is human – and to err in medicine is to be covered by MPT. To alter, however, is to walk alone.


Gordon Ownby is CAP-MPT’s general counsel. Comments on Case of the Month may be directed to gownby@cap-mpt.com.