Make Sure the Charting Is There – In Case You Are Not

Quite often, legal disputes over medical care turn on the credibility of the physician versus that of the patient when each has a different recollection of events. Regardless of how good a witness the doctor promises to be, the support of appropriate medical records in such disputes is critical.

Contemplate the problem facing the defense, then, when the physician suddenly dies – before deposition – and the medical records left behind do not adequately refute the patient’s assertions.

One such patient, a 35-year-old mother of three, visited her OB/GYN, Dr. G, after an abnormal pap smear. Colposcopy and a cervical biopsy by Dr. G revealed severe cervicitis and dysplasia with squamous metaplasia. In his notes at the time, Dr. G recorded that the patient was still nursing her youngest child, who was not yet three.

Dr. G then admitted the patient to the hospital and performed a cold knife conization of the cervix and D&T to rule out an invasive lesion. Dr. G again noted that the patient had nursed her child “for more than a year.” After discharge, the surgical pathology report revealed non-invasive carcinoma in situ. The patient and Dr. G discussed a hysterectomy, which the patient decided against.

Three months later, the patient visited Dr. G, who charted a three-week history of galactorrhea. A pap smear revealed atypical reactive cells, so Dr. G ordered various other lab studies, including a prolactin test. The results of the prolactin test showed a value of 50, with a normal reference range from 2.8 to 29.2 for non-pregnant women. The patient’s thyroid stimulating hormone was also at the lower end of normal and her free thyroid index was slightly low.

Dr. G discussed with the patient a total hysterectomy, which he subsequently performed. The patient returned for a repeat pap smear six months later but did not return again.

Instead, during the next year, the patient presented to the emergency room with a four-day history of headaches and double vision. A sixth nerve palsy was also noted. This time a prolactin test was low, at 2.5, and CT studies confirmed a pituitary macroadenoma. The patient underwent surgery to remove the damaged pituitary gland and its accompanying pathology. The patient was then started on full thyroid hormone replacement.

The patient and her husband sued Dr. G for injuries based on the 14-month delay between elevated prolactin test ordered by Dr. G and the patient’s acute pituitary event.

The dispute over Dr. G’s treatment centered first on his notes that the patient was nursing her child. The patient testified that she had never nursed any of her children.

Next, the patient’s testimony contradicted Dr. G’s uncharted recollection that he had told her that her prolactin level was elevated -- but not significantly so, because of the nursing. In her deposition, the patient testified that Dr. G told her that the prolactin test was normal. She also testified that her LMP was a year before the hysterectomy, not the four months prior that Dr. G had charted.

Because Dr. G died before any of his informal recollections could be recorded in deposition or trial, his medical records became his only testimony. Given the gap regarding discussion of the prolactin test, those records could not contradict the patient’s testimony. A jury ultimately found in favor of the patient with a significant award.

Cases like this show the legal perils that can flow from not charting the physician’s significant discussions with the patient. By making a record of such events, the true story can always be told – even if you are not there to tell it.
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Gordon Ownby is CAP-MPT’s general counsel. Comments on Case of the Month may be directed to gownby@cap-mpt.com.