Proper documentation key for reducing risk in negligence lawsuits

Key Points

Chicago - Keeping up to date with evolving standards of care, conducting thorough patient counseling that explains all reasonable evaluation and treatment options, and ensuring careful follow-up are important risk-management strategies for helping dermatologists avoid the mayhem accompanying a malpractice suit for a missed or delayed diagnosis of malignant melanoma.

However, proper charting with meticulous documentation of one's actions and communications may be more critical than anything else, because it can be the basis for a strong defense and stop a lawsuit from being filed in the first place, according to Mark M. Burden, Esq., and Stetson F. Atwood, Esq.

Mr. Burden and Mr. Atwood are attorneys at the Chicago law firm of Donohue, Brown, Mathewson and Smyth, where they specialize in defending physicians involved in medical-negligence lawsuits. They note that in a case of professional negligence, the information in a patient's chart often represents the best evidence of the facts of the case. Therefore, it is in a physician's best interest to chart carefully in order to create a record that will support their defense in a malpractice suit, should one arise.

Adds Mr. Burden, "A well-documented chart that helps establish the physician met the standard of care may also prevent a malpractice case from even getting filed. A chart is often the first thing a plaintiff's attorney will review in deciding whether or not to pursue a case, and remember, plaintiffs' attorneys are only paid if their clients win."

Case in point

To further explore issues that often prove critical in malpractice lawsuits involving the care of a dermatologist, Mr. Burden and Mr. Atwood present hypothetical cases and assume the roles of opposing attorneys in these cases. One case involves a patient who was advised by a dermatologist that a melanocytic mole was benign and required no additional treatment based on findings of examination with optical diagnostic technology (MelaFind). Another dermatologist who saw the patient a few years later performed a biopsy that identified melanoma, but the report was lost. The patient, who was never notified of the diagnosis, had a seizure one year later, was found on evaluation to have brain and visceral metastases, and eventually died.

Two possible negligence claims can be made against the first physician: 1) The optical diagnostic technology is not standard of care for identifying melanoma and that its use resulted in a delayed diagnosis, and 2) the physician failed to properly instruct the patient to return for regular follow-up, resulting in delayed diagnosis. Since standard-of-care issues relating to chosen methods of diagnosis and treatment often come down to a battle of experts hired by the opposing sides, the decision about the first claim as well as for the second will more likely depend on what documentation exists in the medical record, the presenters say.

Playing the role of the plaintiff's attorney in this hypothetical case, Mr. Burden says, "It is important to know the limits of new and emerging technology and to use such modalities in connection with sound clinical judgment integrating other test results and clinical findings. However, irrespective of what the physician in this case may claim in testimony about the care he administered, the strength of the defense ultimately depends on whether the defendant's arguments are supported by the information contained in the chart."

Mr. Atwood echoes these thoughts. "Even if the defendant physician makes a good witness, it is difficult to convince jurors of specific facts in the absence of sufficient documentation. Merely stating that one performed an appropriate clinical exam or, in the case of the second negligence claim, that it is custom and practice to instruct patients to follow-up, renders the defendant vulnerable on cross-examination by the plaintiff's attorney," he says.

The negligence of the second physician relates to the failure to communicate the biopsy results to the patient, and the plaintiff has a strong case on these grounds.

"A plaintiff's attorney will tell a jury that once a physician orders a test, they own the result and are obligated to ensure that it is communicated to the patient," Mr. Burden says. "The lesson here is the importance of putting in place an office procedure for receiving, reviewing and reporting test results to ensure that they do not fall through the cracks. Failing to have such a procedure in place may be a violation of the standard of care."