Tuesday, January 24, 2012

Malpractice Verdict Hinges On Late Entry In Notes

I have been asked to handle a Pittsburgh medical malpractice lawsuit involving a negligent discharge of an elderly patient suffering from pneumonia.  As I always do, I have tried to research other cases that have gone to verdict with a similar fact pattern.  Nothing so far, at least in Allegheny County, is dead on point but I did find the case of Bryner v. Opy et al.

The estate of the 55-year-old male decedent brought this medical malpractice action against two family physicians and their professional association. The plaintiff claimed that the decedent's death resulted from the defendants' failure to provide prompt treatment for pneumonia and pulmonary fluid buildup. The defendants argued that the decedent was advised to go to a hospital, but refused to do so.

The decedent was an insulin-dependent diabetic. The testimony indicated that he had been feeling ill for several days and called the defendant's office for an appointment. The decedent saw a physician's assistant at the defendant's office on July 30, 1998, as no physician was available at that time. Records indicated that the decedent complained of feeling sluggish, shortness of breath, high blood sugar by home glucometer and high blood pressure.

An examination by the physician's assistant confirmed reduced bilateral breath sounds and high urine glucose. A stat x-ray was taken. The x-ray results, which were reported the following day (July 31, 1998), showed a large left lobe pneumonia with a large buildup of plural fluid, according to the plaintiff's experts. The plaintiff claimed that blood work performed on August 2, 1998, confirmed very high blood sugar and a very high white blood count. Antibiotics were phoned to the decedent's drugstore by the initial defendant on August 2, 1998.

The decedent saw the initial defendant on August 3, 1998, still complaining of feeling sluggishness, shortness of breath and productive cough. Examination confirmed reduced breath sounds on the left. The plaintiff contended that this defendant planned to treat the decedent as an outpatient with the antibiotic Augmentin. However, the decedent died in his home approximately 12 hours later. Autopsy confirmed a large left lobe pneumonia and massive pulmonary fluid buildup that had collapsed the left lung.


The plaintiff's internal medicine expert opined that the sluggishness, shortness of breath, high glucose levels, known insulin-dependent diabetes mellitus and reduced breath sounds identified by the physician's assistant on July 30, 1998, required an immediate in-office examination by a physician or admission to the emergency room if no physician were available. The plaintiff claimed that the physician's assistant was not properly supervised by the second defendant physician. The plaintiff also argued that the same symptoms plus high white cell count and productive cough identified by the initial defendant on August 3, 1998, required emergency admission to permit I.V. antibiotics and I.V. control of sugar and electrolytes, which would have prevented the decedent's death on August 4, 1998.

The plaintiff's former employer testified that the decedent was a good worker and was earning approximately $ 40,000 per year at the time of his death. No medical expenses were offered into evidence.
The defendants claimed that they had advised the decedent to go to the hospital during a telephone call on August 2, 1998, and, again during the office visit of August 3, 1998. The defense contended that the decedent refused to go to a hospital. The plaintiff's widow denied that her husband had been told to go to the hospital.
The jury found the initial defendant 57% negligent and the decedent 43% comparatively negligent. The second defendant and the physician's assistant were found not negligent. The plaintiff was awarded $ 428,000, which was reduced accordingly. The plaintiff's net judgment, with delay damages, was $ 258,000.

The defense of this wrongful-death medical malpractice action hinged primarily on an assertion that the decedent was advised to go to the hospital and refused to do so. Of course, the decedent was unable to testify in this regard and his widow maintained that her husband was never advised to seek hospital treatment. The plaintiff stressed that there were no records made of any recommendations to go to the hospital or the decedent's alleged refusals to do so until after the date that the defendants were notified of the death, and it was only then that these notations were made. Plaintiff's counsel objected to a jury charge of contributory negligence, arguing that no expert testified that the decedent's conduct had been negligent or that his conduct contributed to his death. However, the trial court denied the plaintiff's objection, and the jury ultimately assessed 43% comparative negligence against the decedent, apparently accepting defense arguments that the decedent could have done more to protect his own health.

Practitioners can be reminded by this case, from a liability standpoint at least, of the importance of taking particular steps when dealing with a noncompliant patient. The patient's noncompliance should, of course, be entered completely and fully in the record. This entry should include the advice given, when it was given, the noncompliance of the patient with that advice, all explanations given to the patient attempting to obtain compliance including the importance of compliance, as well as any and all other efforts taken in an attempt to obtain compliance through family, relatives or through secondary communications by telephone, by mail or directly. The failure to make a complete entry in the medical record of a patient's noncompliance may lead to the inference at a later date that the noncompliance, in fact, never occurred and the advice allegedly given by the physician may have never actually been given.


With the physician in this case, the note of noncompliance was entered after the fact with the event, at a later time after the physician had been advised that the patient had expired. Entries made in a medical chart at a later time when a physician becomes aware of possible liability exposure because of the occurrence of an adverse event, by their very nature tend to create suspicion in jurors and lawyers. Entries made in a medical chart which are contemporaneous with an event provide strong evidence of what actually occurred, not only because they are made in a timely manner when memories of the actual occurrence and the events in question are fresh, but also because they are being entered at a time before any accusations of malpractice or the potential for malpractice are indicated and are, therefore, less likely to be self-serving and are considered far more credible. To the contrary, late entries made in the medical chart when a physician is already aware of circumstances which may reflect on his or her judgment or treatment, may be looked upon by a lay jury as an attempt to avoid liability after the fact by making the late entry in the record. These types of late entries can often have the effect of not only impairing the believability of the entry itself, but can also impair the credibility of the physician being accused by the inference created that he or she altered the records in an attempt to avoid potential liability. Share this post :
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