What You Can Learn From Nightmare Malpractice Cases

By Janice G. Roven, JD, LLM

You may not be able to prevent a malpractice claim from ever being filed against you (there are a lot of folks out there looking for an easy payday). However, there are proactive steps you can take to safeguard and successfully defend your practice should a lawsuit be filed against you. Although there are basic theories of malpractice prevention, I have found it helpful to teach prevention by example.

Think Twice About Testifying Against Colleagues
Case One: I represented a podiatrist who was truly disturbed about being sued. When I met with him to discuss this matter, he informed me the patient who was suing him had not sought care and treatment with him for over a year. He had performed surgery and felt the result was excellent. He subsequently learned that the patient moved and sought care and treatment from another podiatrist.
Unfortunately, the podiatrist whom I represented had testified against the DPM from whom the patient subsequently sought care and treatment. It was my client’s position this DPM was angry at him for testifying against him in another case and this was his way of “returning the favor.” It was his position that the new DPM informed the patient the result was less than
excellent. He convinced her she needed additional surgery because of the previous DPM’s poor job.
By convincing her she needed additional surgery, he planted a seed in the patient’s mind that there was a problem. It did not take much more to convince the patient she should initiate a malpractice action. He even offered to testify against the podiatrist who treated her originally.

What You Can Learn From Case One
One method of preventing litigation is not encouraging patients to sue other podiatrists. Often, podiatrists comment on or criticize other peoples’ work. This is a very subtle method of encouraging lawsuits against your colleagues. One way to avoid being put in an uncomfortable situation is to say it is the office policy not to comment on work that was not performed in your office.
Often, attorneys approach treating podiatrists to testify against their colleagues. Non-treating podiatrists are also contacted to testify. Accordingly, give some serious thought as to whether you want to testify against a colleague. Although the financial and professional incentives of being considered an expert for the plaintiff may be alluring, give strong consideration to not participating. If podiatrists stop testifying against each other, the plaintiffs may be less likely to pursue podiatric malpractice actions.

Keep The Lines Of Communication Open
Case Two: In another case, I defended a podiatrist who performed extensive surgery on a patient. The plaintiff testified at her deposition that she had significant pain. Although she called the office to complain, the podiatrist was not made aware of the call. The receptionist told the patient to wait for the next appointment. Unfortunately, during this time frame, a complication arose and would have been easily treated if the patient were treated on the day in question.
The malpractice claim revolved around the delay in care and treatment. Whether the patient actually called the office will be a question of fact for the jury. However, the podiatrist testified he did not have a custom and practice in his office with respect to telephone calls. As such, he could only testify he did not know if his office received the call. Although we had a long discussion with his receptionist, she had no recollection of this particular call. She received so many calls that her testimony would not have been helpful.

What You Can Learn From Case Two
Believe it or not, one of the most prominent complaints to medical boards is the complaint that the physician did not return the patient’s telephone call. Additionally, on a majority of the cases in which I have defended podiatrists, the plaintiff will testify he or she telephoned the podiatrist on several occasions and did not receive a return call. Another consistent theme I have heard from plaintiffs is they called with complaints and could not get an immediate appointment.
This not only angers the patient but may also lead to him or her calling another podiatrist for an appointment. Most DPMs do not want to get involved in the process of running an office. However, it is absolutely critical to monitor what your staff is saying to your patients. Although your staff may believe they are protecting you, they simply are not. Additionally, you must explicitly inform your office staff that rendering any medical advice on the telephone is absolutely strictly forbidden.
Even if the policy is not in writing, you should have a policy with respect to any calls except appointments. It is critical for you to return telephone calls and to document what you said. At the very least, attach the phone message to the medial records and indicate what you said. Although this may be time consuming, it will show to any jury that you are conscious of communication in your practice.

Be Sure To Get And Maintain Documentation Of Informed Consent
Case Three: I defended a podiatrist in a malpractice action in which one of the claims was for lack of informed consent. The patient testified she did not recall signing any forms other than the insurance forms. Although the podiatrist testified that it was his custom and practice to explain the procedure and to have the patient sign the form, he could not locate the informed consent form this particular patient executed. He produced a blank copy of the form, but it wasn’t enough.
At trial, we were able to defend successfully against the medical malpractice cause of action. However, we were unsuccessful in defending against the lack of informed consent issue. After the trial was completed, the jury informed the attorneys that although the podiatrist had a custom and practice with respect to signatures, they could not understand why there was no signed form. Combine this with the plaintiff’s testimony that she had no recollection of signing the form and had she been aware of the risks, she would not have undergone the procedure. A jury awarded a substantial sum on this issue.

What You Can Learn From Case Three
Communication between the podiatrist and patient is critical. In general, a malpractice claim can have an informed consent element. Essentially, in an informed consent cause of action, the plaintiff is essentially claiming all of the risks associated with the procedure were not revealed. In order to protect yourself in an informed consent cause of action, have patients sign an informed consent form. It is critical to your practice that you establish a custom and practice surrounding the informed consent form. This form can be critical to the defense of this cause of action.

Why Accurate And Thorough Medical Records Are Pivotal
Case Four: I have represented many podiatrists who have made themselves lawsuit victims because of the medical records that they kept. In one case, I represented a client who wrote his treatment notes in English, but wrote additional notes that he did not want anyone else to read in Hebrew. To most people, the writing looked like simple doodling.
However, the plaintiff’s counsel was astute enough to realize physicians don’t usually doodle on medical records. He thought the writing was significant. Upon investigation, he realized what the writing was. These doodles were the reason this matter was settled. It was anticipated that the jury would be unforgiving of a physician who wrote seemingly secret notes to himself regarding the patients.
Case Five: I have also defended podiatrists who, after being sued, changed the medical records. I represented one podiatrist who changed his records, although I did not realize the records were changed. Apparently, unbeknownst to the podiatrist, his staff received an authorization for the release of the plaintiff’s records. In response to the authorization, the staff forwarded a copy of the records. Once the podiatrist received a Summons and Complaint, he reviewed the chart and made some changes. These new records were sent to the plaintiff’s attorney. Both the podiatrist and I were unaware the plaintiff’s attorney had two sets of records.
At the deposition of the podiatrist, he was asked a variety of questions regarding the original records that were presented at the deposition. After it was established that the records produced were kept contemporaneously and the doctor did not change his records, the plaintiff’s counsel took out the real original records. Although the changes were not significant, again, a jury would be merciless in evaluating the podiatrist’s performance. It was clear that the plaintiff’s lawyer established the podiatrist as someone who lied under oath. As such, it would be difficult for any juror to believe the podiatrist’s testimony. Again, this matter was settled.
Case Six: In another action in which I defended a podiatrist, it was blatantly clear he changed his records. He made the changes to the records and included the wrong year. Although he tried to come up with a reasonable explanation as to why the current year was used and not the year in which the treatment was rendered, there was no way anyone was going to believe the story that it was a simple mistake. It was clear the original records were gone. Again, a jury would be merciless with respect to this activity.
Case Seven: In another action, I represented a DPM who maintained his treatment records with only billing codes. Instead of writing in words on the patient’s chart the care and treatment that he rendered, he would simply write the numerical insurance billing code. When we discussed his practice, it was his position that he knew what all of the billing codes meant and he felt that keeping records was a waste of his time. Your personal opinion on records is not significant when it comes to establishing the best defense in a malpractice action.
Imagine what a juror would think when all the podiatrist has in his records is a variety of numbers. If the podiatrist takes the position that he recalled the care and treatment that was rendered to the plaintiff, the plaintiff’s attorney will have a field day on cross examination. For example, once the plaintiff’s attorney established how many patients the podiatrist sees per week, per month and per year, it will be impossible for any jury to believe the podiatrist is capable of having an independent recollection of any events associated with the care and treatment of the patient.
As a caveat to this action, it is critical for podiatrists to be aware that insurance companies do not consider medical record keeping by number to be sufficient for payment.

What You Can Learn From Cases Four Through Seven
It is critical to keep and maintain thorough and accurate medical records. Slipshod recordkeeping is the easiest way in which a plaintiff can win an action even if no malpractice is committed.
Never try to change a patient’s medical records after the fact. First, this can be considered some form of tampering with evidence. It is simply illegal to change records after an action has been initiated, especially if you are throwing out the records that were kept contemporaneously with the care and treatment. Rest assured, most attorneys who practice medical malpractice, either for the defense or for the plaintiff, can tell when treatment records have been altered.
In all of these actions, the matter was settled for much more than it was worth. The simple reason is jurors hold doctors to a higher standard. They will financially punish any podiatrist with a high verdict or any podiatrist whom they perceive is lying or attempting to deceive them. The simple solution is to keep complete and comprehensive records. Do not under any circumstances change the records.

Ms. Roven has been a practicing attorney in New York City for over a decade, specializing in the area of medical malpractice defense, podiatric defense and insurance reimbursement. She received her Juris Doctor and Masters in Litigation from Emory University Law School. Ms. Roven can be reached via mail at 225 W. 57th St., Suite 300, New York, N.Y. 10019.

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