POOR DOCUMENTATION: HOW TO MAKE A COMPLICATED CASE WORSE

Over the years, one statistic that has stayed fairly consistent is the 8 out of 10 times that medical malpractice claims against physicians are resolved wholly in favor of the doctor.

This means that a claimant could not procure an expert witness prior to trial, thus ensuring a voluntary dismissal or motion for summary judgment, or it means that the jury favored the defendant physician over the accusations of an opposing expert at trial.

One of the wild cards in medical malpractice litigation, however, is the theory of “lack of informed consent.” This means that even if an injury from a medical procedure was not the result of a physician’s negligence, the patient may still prevail if he or she can show that the physician did not provide enough information for the patient to make an informed decision to undergo the procedure.

Dr. PS, a plastic surgeon, first saw the 57-year-old patient for her complaints of obesity. Dr. PS suggested liposuction of the abdomen, thighs, back, flanks, arms and neck.

Included in the records is an addendum indicating the patient wished to have an abdominoplasty, that she had a right upper quadrant scar from a prior cholecystectomy, and that the patient would need a “stage” full abdominoplasty. The undated addendum further noted that the risk was too great to the skin below the scar above the umbilical flap and that Stage 1 of the procedure would be a be a below-the-umbilicus abdominoplasty.

At the patient’s next visit 10 days later, she signed consent forms for liposuction and abdominoplasty procedures at a surgery center. None of the forms signed by the patient, however, indicated that the abdominoplasty was to be a “staged” procedure.

Two days after the surgery, the patient was admitted to the hospital for abdominal pain and inability to urinate. CT scans indicated a small supraumbilical herniation and a suspected hematoma, which Dr. PS believed was actually a “folding” of abdominal muscle.

At an office visit two weeks after surgery, the patient was concerned with a “full” upper belly. Dr. PS remarked that the abdomen was within normal limits and that the patient needed an “upper abdominoplasty-stage 2.” The patient, however, said she was not ready for another procedure.

Eventually, the patient sued Dr. PS claiming the he failed to diagnose a pre-existing hernia and that she never would have consented to a “two-stage” abdominoplasty.

On the latter point, it was Dr. PS’s position that he discussed with the patient a two-stage procedure. Dr. PS’s medical records, however, offered no support for the discussion. In fact, drawings made on copies of the patient’s pre-operative photographs could have been used to argue that a doctor-patient discussion centered on a “full” abdominoplasty, not one to be performed in two stages.

Though expert reviews did not see a violation in the standard of care in the surgery performed on the patient, there was enough concern over the state of the medical records on the issue of informed consent to make a pre-trial conclusion the best course to take.

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