 is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. He specializes in malpractice defense and insurance litigation.

Kenton H. Steele, Esq

The importance of timely and comprehensive documentation is a frequent topic of conversation in health care. It is easy to understand how an incomplete record of a patient’s conditions and medications can cause complications for a subsequent care provider. However, health care professionals may be less familiar with the legal consequences that can result from even a brief delay in completing a thorough record of a patient encounter.

Medical documentation creates a record of all information about a patient that a future care provider may need to make decisions about treatment. Accurate documentation is an essential step to ensuring the standard of care is met. A failure to document can cause adverse outcomes, which can in turn lead to malpractice claims. However, even when a failure to timely and thoroughly document a patient encounter does not directly affect subsequent care, it can still lead to a time-consuming and costly lawsuit.

A recent case involving a patient who went to an emergency department (ED) with a complaint of back pain is a prime example. The patient arrived at his local ED and explained that earlier in the day he had strained his back when he slammed on his brakes to avoid a low-speed car crash. After evaluation, the patient was given pain medication, which relieved the pain quickly. The patient’s vitals and a brief description of the encounter were charted shortly after the patient was sent home with instructions to follow up with his primary care doctor.

The ED doctor, in keeping with his typical practice, planned to use his handwritten notes to add a more detailed description of the encounter to the chart the following day. Unfortunately, a short while later the patient returned to the same hospital via ambulance after his wife found him unresponsive. Efforts to revive the patient were unsuccessful. It was subsequently determined that the patient’s back pain and death were caused by a dissecting thoracic aneurysm rather than muscle spasms from the car crash.

When the ED doctor who had originally seen the patient returned to the hospital for his shift the following day, he learned what had happened. The doctor then added the late entry narrative of the encounter to the chart, but a much different version of the encounter appeared. The doctor noted that he had been concerned about a possible thoracic aneurysm and had essentially begged the patient to undergo testing, which would have likely revealed the patient’s true condition. According to the doctor’s late entry, the patient’s concern about paying an insurance deductible and anxiety about being in the hospital made the patient insistent that he be released as soon as possible without any diagnostic testing.

When a lawsuit was filed by the patient’s wife, based on the alleged negligent failure to diagnose the aneurysm, the timing of the doctor’s late entry was uncovered. The late entry, combined with the wife’s testimony that her husband never had anxiety about hospitals and would not have been concerned about an insurance deductible, converted a standard failure to diagnose claim into a far more complicated claim. The new allegation was that the ED doctor had fabricated the additional details of the encounter to avoid liability for the patient’s death. The allegation of improper bolstering of the medical record created a very real possibility that the patient’s wife would be awarded millions of dollars in punitive damages. This led to the patient’s wife credibly seeking well over $10 million from the doctor and the hospital. After years of litigation, the case ended with a multimillion-dollar settlement.

Although the doctor documented the encounter, the untimeliness of the entry—and its possibly fabricated information—created more liability than if the record had not been updated. When he learned of the patient’s outcome, the ED doctor likely would have been better served by consulting with his hospital’s risk management team before making any change to the patient’s medical record. If this had been done, the outcome of the case likely would have been significantly different.

In today’s fast-paced environment, a practitioner’s time and attention are precious resources that should be put to best use. Although chart completion may seem like a chore that can be put off until later, this decision can backfire. Delaying the completion of a chart can result in spending weeks in a courtroom if a lawsuit arises. Even when the demands of providing patient care require that documentation be delayed, providers should be mindful when completing after-the-fact charting. When in doubt, consulting with risk managers can reduce the possibility of an allegation of improper modification of a patient’s records.

Articles

"Although chart completion may seem like a chore that can be put off until later, this decision can backfire," cautions Kenton H. Steele, Esq.

Malpractice Consult: Delays in charting can lead to lawsuits, financial consequences

Medical malpractice cases almost always involve complex technical questions that are at the heart of treatment decisions, yet cases are decided by juries comprised of people with no medical training. How are nonmedical professionals expected to accurately and fairly decide whether a physician committed malpractice? That’s where expert witnesses come in. Their testimony is provided to help jurors understand the issues so they can reach a verdict. This column discusses the role of the medical expert: necessary qualifications, their part in malpractice litigation, and qualities for success.

Normally, witnesses testifying at trial are limited to talking about their personal knowledge of a case and can offer opinions or conclusions in specific, limited circumstances. Nonexpert witnesses cannot testify about scientific or technical principles outside the common understanding of the average person. By contrast, expert witnesses are allowed to offer their opinions based on an after-the-fact review of what transpired and are not limited to their personal knowledge of the case. Their opinions and conclusions often involve technical questions or abstract principles.

Before a witness is permitted to offer an opinion, their qualifications, such as professional experience, must be established. In short, an expert witness is someone who has specialized skill, knowledge, education, or training. Additionally, the basis of an expert’s opinion must be grounded in concepts that are well accepted in the relevant medical or scientific community. In the context of medical malpractice litigation, before an expert witness can criticize a medical professional’s treatment decisions, the expert must show that they practice in a specialty that is the same as or similar to that of the health care professional accused of malpractice.

What is an expert witness’ role in malpractice litigation?

Expert testimony in malpractice cases is required for 2 different but related issues. First, an expert witness provides the testimony that is used to inform the judge and jury what the defendant in the case should have done in response to the specific facts presented. Once the standard of care is established, the expert can offer their opinion on whether the defendant’s actions were consistent with or a deviation from what was reasonable. The testimony of an expert witness may also be necessary to establish that the plaintiff’s claimed injury was caused by the conduct of the defendant. Alternatively, a defendant in a malpractice case may present testimony that the plaintiff’s injury was caused by something other than the treatment provided by the defendant.

Frequently, both the defendant and the plaintiff in a malpractice case will present expert testimony and present the jury with competing versions of what the standard of care required, whether the defendant’s conduct met that standard, and/or whether the defendant was the cause of the injuries at issue. Ultimately, the jury will determine which expert presented the most credible explanation of the issues in the case.

What qualities make an expert witness successful?

The role of an expert witness in malpractice litigation is not limited to offering testimony at trial. In fact, one of the expert’s most critical functions happens long before any trial. When a patient experiences an adverse outcome and begins the process of pursuing a legal claim, lawyers for the health care professional and the patient will undertake separate investigations of the merits of the potential lawsuit. In this investigation, the attorneys involved will ask experts in the relevant field to review the records and facts available. After this review, the lawyer will consult with the expert for a preliminary opinion on whether a viable claim exists based on the circumstances of the patient’s care. Initial expert consultations are crucial for accurately advising clients on whether the treatment at issue may result in legal liability or whether the care decisions are defensible. Although care providers can explain their treatment decisions, attorneys rely on medical experts to provide an outside perspective and impartial assessment.

Although early expert reviews are useful, in the event a case proceeds to a trial, a jury of laypeople will decide if a defendant is liable for a plaintiff’s injuries. The party that prevails will usually be the side that presents expert testimony that the jury finds most credible. Thus, the hallmark of a great expert witness is the ability to explain complex medical issues in a way that makes sense to people without medical training.

The ability to explain complex medical issues to laypeople is crucial.

Urology malpractice consult: Qualities for successful expert witnesses

What are legal standards used to define medical malpractice? How do judges and juries decide which medical errors entitle a patient to bring a lawsuit? If a plaintiff alleges medical malpractice, what must he or she prove to recover damages? This article will provide an overview of what must be present for a malpractice claim to exist.

The idea that physicians are responsible for avoidable injuries to patients is nearly as old as the practice of medicine. The Code of Hammurabi sets out penalties for medical errors: “If the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die…cut off his hands.” Thankfully, our system for addressing medical errors has changed significantly since Babylonia’s 3800 years ago.

The foundation for the modern approach to addressing medical malpractice was set in ancient Rome, where a person injured by a doctor could seek monetary compensation for economic losses and pain and suffering. The Roman system was the basis for English common law, which was the basis for the American legal system.

To win a malpractice case, a patient is required to prove 4 elements:

• the existence of a duty of care owed to the patient by the doctor

• a breach of this duty in the form of a departure from the standard of care

• a causal tie between the breach and an injury to the patient, and

• damages in the form of monetary costs, physical pain, and mental suffering.

To prevail, a plaintiff must show that it is more likely than not that each element is present.

With the first element, a doctor must exercise reasonable care in providing treatment to the patient. This is typically the most straightforward element for a plaintiff to establish. Although there are some exceptions, a duty is generally presumed to exist when a doctor treats a patient.

To establish a breach of duty, a plaintiff must offer testimony from a qualified expert to explain the standard of care required and how the defendant failed to meet that standard. The definition of 

 can vary. In general terms, it refers to the care that a doctor is reasonably expected to provide under the circumstances in the case. Importantly, the standard of care requires that treatment decisions are reasonable. Meeting the standard of care does not require that decisions are made with foresight and perfect accuracy. Doctors may disagree about what treatment option is best. Such disagreements do not mean that 1 treatment option is within the standard of care and the other is not.

A departure from the standard of care is legally insignificant without an injury. To establish the third element of a malpractice claim, a plaintiff must show a direct tie between a breach of the relevant standard and an injury. Expert testimony can usually establish that an injury would not have occurred “but for” the identified breach of the standard of care.

Finally, a plaintiff asserting a malpractice claim must show that the injury incurred is compensable. There are 2 recognized types of injury, or damages. First, there are economic damages, the monetary costs resulting from an injury. This includes the cost of subsequent medical care and lost wages. The other component is a plaintiff’s noneconomic damages, which comprise the pain and mental suffering associated with an injury. This type of loss is much more difficult to evaluate. What is the dollar amount that compensates someone for discomfort? What is the monetary value of the anxiety a patient experiences? The answers to these questions are entirely subjective. Ultimately, if a plaintiff can show that the other elements of their claim are present, a jury will determine the amount that represent fair compensation for an injury.

The framework explained in this article is designed to balance society’s interest in compensating persons wrongly injured by medical errors against the need to ensure that doctors are not held to an impossible standard of perfection. This system has been developed over thousands of years. It is unclear if we will ever find the perfect way to respond to medical complaints, but we can be certain that the justice system will continue to evolve.

 is an attorney in the Columbus, Ohio office of Reminger Co., LPA. He specializes in malpractice defense and insurance litigation. Please contact him at KSteele@reminger.com with any feedback or comments on this column.

Required elements to prove a claim include breach of duty and damages.

How is a medical malpractice claim defined?

How much time after the occurrence of alleged malpractice does a patient have to file a lawsuit?

As with many things in the medical-legal world, the answer is, “It depends.” However, some general principles may provide an understanding of what a statute of limitations is and how it functions. This article sets out these general principles and provides an overview of some legal doctrines that can impact the time a patient has to file suit in the event of alleged malpractice.

Like all lawsuits, a claim alleging medical care was negligently provided must be filed within a specified period of time after the event that is the basis of the lawsuit. The law that creates this deadline is a “statute of limitations.” A lawsuit filed after the applicable statute of limitations has passed can be dismissed without considering the merits of the case.

Although dismissing a meritorious claim simply because it is too late may seem harsh, statutes of limitations serve useful functions. First, disputes should be raised and resolved in a timely manner. If a person has a grievance requiring court intervention, that grievance should be raised within a reasonable time. Also, as years pass, key witnesses forget and important evidence is lost. Imagine a malpractice lawsuit based on care provided in 2010. What is the likelihood the physician remembers the patient? Will complete records be available?

Allowing “stale” claims could make it impossible for the accused to prove their innocence.

The length of time provided by a statute of limitations on malpractice claims varies from state to state. Most states have limitations periods that fall somewhere between 1 and 3 years. The time limit on malpractice claims is typically shorter than on other types of claims. For example, a claim based on a breach of contract can be made a decade or more after the contract was created. Part of the explanation for this difference is the ongoing effort to control the rising cost of malpractice insurance and health care in general—the thinking being that if the time to bring a malpractice claim is reduced, there will be fewer claims. If there are fewer malpractice claims, the cost of insuring against this type of claim should be lower. The effectiveness of this approach is the subject of ongoing debate.

Knowing the length of a limitations period is only half of the equation for determining the date by which a claim must be filed. The other half is identifying when the timer starts. In a case involving a car crash, the statute of limitations clock begins to countdown immediately after the vehicles collide. However, an injury resulting from medical care may not become apparent until years after the treatment occurs. This gap in time between care being provided and an injury arising has led courts to adopt “the discovery rule.” Under this rule, the time limit to bring a malpractice suit does not begin counting down until the injured person discovers or reasonably should have discovered the injury.

The statute of limitations can also be extended by the “continuous treatment rule.” Under this rule, the time limit to bring a claim against a physician does not begin to run until that practitioner ends treatment for the specific issue that is the basis of the claim. For instance, if a surgeon in a state with a 2-year statute of limitations commits an error during surgery and continues to provide care and treatment to the patient for a year following the procedure, the patient will have 2 years from the last date of treatment to file suit. This rule serves a salutary function. In the event of a medical error, the practitioner can work to remediate the mistake without forcing the patient to choose between continuing treatment or filing a lawsuit. Similarly, patients are protected from unscrupulous practitioners who could inaccurately lead injured patients to believe their condition will improve until the limitations period has expired.

Limits on the time to bring a claim in court are as old as the justice system itself. Understanding these restrictions may allow urologists and other practitioners to quell their concerns that an unhappy patient from the past will reappear as a plaintiff in a lawsuit. That being said, practitioners should consult with an attorney in their jurisdiction if they have specific questions about whether possible claims may be time-barred.

 is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. He specializes in malpractice defense and insurance litigation. Please contact him at KSteele@reminger.com with any feedback or comments on this column

"The length of time provided by a statute of limitations on malpractice claims varies from state to state," writes Kenton H. Steele, Esq.

Kenton H. Steele, Esq

Articles

Malpractice Consult: Delays in charting can lead to lawsuits, financial consequences

Urology malpractice consult: Qualities for successful expert witnesses

How is a medical malpractice claim defined?

Malpractice consult: What urologists need to know about statutes of limitations