Speaker 1:
You are listening to Your Practice Made Perfect, support, protection, and advice for practicing medical professionals, brought to you by SVMIC.

Renee Tidwell:
Hey everyone, welcome to this episode of Your Practice Made Perfect. I'm your host, Renee Tidwell. Today we're going to cover a closed claim review for you. In this episode, we're going to review a closed claim that highlights the importance of thorough documentation, and we're calling this one The Tale of Two Appendectomies. Joining me today is one of our senior claims attorneys here at SVMIC, J. Baugh. J., welcome to the show.

J. Baugh:
Thanks, Renee. I'm glad to be here.

Renee Tidwell:
It's great to have you. Before we get started today, will you remind us how long you've been doing medical malpractice defense work here?

J. Baugh:
I was hired as a claims attorney at SVMIC back in August of 2000, and I was promoted to senior claims attorney at the beginning of 2005. So I've been working in the Claims Department at SVMIC for almost 23 years now.

Renee Tidwell:
That's a pretty impressive tenure. I know we have recorded many other closed claim episodes, but to make sure we're all on the same page, could we start with just a quick summary of what the term closed claim means to SVMIC?

J. Baugh:
Well, let's begin by talking about what we mean when we use the word claim. A claim is when a patient requests payment for some type of injury that the patient believes one of our insurers is responsible for. The claim usually comes in the form of a lawsuit, but it could also be what we call a pre-suit claim. Sometimes the patient or the patient's attorney will send a letter to one of our insureds and request payment in lieu of filing a lawsuit. We consider those types of letters to be a claim, in addition to a lawsuit being considered a claim.
So, when we use the term closed claim, we mean a claim that has been resolved, and that can happen in a number of ways. A lawsuit is considered a closed claim once the lawsuit has been dismissed, and that could happen for a number of reasons. A lawsuit can be dismissed on a procedural basis. It could be voluntarily dismissed by the patient, or plaintiff as they're called in the context of a lawsuit. The lawsuit could be dismissed after a settlement has been reached, or a lawsuit could be considered a closed claim after a trial has been held and all the appeals have been exhausted.

Renee Tidwell:
Thank you for clearing up that terminology. It was really helpful for me. Let's go ahead and get started with this specific case. Today we'll discuss a claim that was eventually settled instead of taken to trial due to an underwhelming amount of documentation. Let's start off with an introduction to the patient in that initial visit.

J. Baugh:
Sure, Renee. In this case, we had a patient named Mrs. Green present to her local hospital's ER with acute abdominal pain. After an initial examination and imaging, she was diagnosed with appendicitis. Her care was then referred to the on-call surgeon, Dr. Blue, who scheduled her for an appendectomy that same day. But this is where things get complicated. Dr. Blue found a severely inflamed abdominal cavity, and the surgery took twice as long as is customary for Dr. Blue's appendectomies. Regardless of this, Dr. Blue was able to perform the surgery without apparent complication and Mrs. Green was discharged the next day.

Renee Tidwell:
Okay, so let me just recap that for a minute. So, even though the surgery lasted about twice as long as normal, the appendectomy was performed without complication and the patient's discharged. That sounds pretty cut and dry. What happened after the surgery?

J. Baugh:
Well, Mrs. Green was followed closely by Dr. Blue in his office for waxing and waning complaints of abdominal pain, nausea, and fever. Mrs. Green also returned to Dr. Blue for seven postoperative follow-up appointments throughout February and March. She was also prescribed several courses of antibiotics.

Renee Tidwell:
Does Dr. Blue find anything concerning during the stretch of office visits over that two month period?

J. Baugh:
Well, before Mrs. Green's third visit, Dr. Blue received the surgical pathology report from the appendectomy. The report found acutely inflamed fibroadipose tissue, but no appendiceal architecture within the resection. This is important to note, and it's our first indication that there are some issues with the documentation. While the report was filed in Mrs. Green's office chart, it was not signed, initialed, or dated by Dr. Blue.

Renee Tidwell:
When exactly was the pathology report discussed with Ms. Green, or was it discussed?

J. Baugh:
So, during that third office visit, yes, it was discussed then. Dr. Blue discussed the findings from the report with Mrs. Green and recommended she return to surgery. But at this point, Mrs. Green was feeling better and recovering from the appendectomy. Because of this, she was reluctant to undergo a second operation. She stated that she preferred to wait and let a little more time pass, but she agreed to revisit his recommendation at her next appointment.

Renee Tidwell:
Is all of this in Dr. Blue's documentation?

J. Baugh:
There was documentation of this discussion, yes. Dr. Blue noted in Mrs. Green's medical record that she was advised to go back in with laparotomy and check to see if anything is wrong, but patient requested not to do anything until next office visit.

Renee Tidwell:
I'm curious now, did she end up discussing another surgery with Dr. Blue at her next visit?

J. Baugh:
Yes, she did. Dr. Blue raised the issue again at her next visit, but by this time all her complaints were almost fully resolved. So, she declined Dr. Blue's recommendation to further investigate the pathology findings. She did agree to let Dr. Blue know if her problems returned.

Renee Tidwell:
Okay, so, so far to this point, all of this is accurately reflected in Dr. Blue's documentation, right?

J. Baugh:
It was. Dr. Blue's scribe documented this conversation in the office record saying, "Dr. Blue will order CT or laparoscope if patient still has trouble with pain and fever. Patient said she is feeling better today but will keep us informed if she has any more problems." But recall, that pathology report was filed in the patient's office chart but was not signed, initialed, or dated by Dr. Blue. So, while he is documenting his conversations, he has not signed off on the pathology report, which is equally as important.

Renee Tidwell:
So, now we know that Mrs. Green eventually had more issues and came back to see Dr. Blue, but could you go ahead and elaborate a bit more about that?

J. Baugh:
Well, Mrs. Green's abdominal pain resolved shortly after the surgery and she began to get back into her normal rhythm of life. It wasn't until two years and eight months after the first surgery that she returned to the ER at a different hospital with acute abdominal pain once more. There, after examination and imaging, Mrs. Green was again diagnosed with appendicitis. Mrs. Green was dumbfounded by the diagnosis and advised the ER physician that Dr. Blue had removed her appendix two years and eight months ago. Regardless of this, she was taken back to surgery and was found to have a perforated appendix. Given the extent and impact of the infection, her recovery from the second appendectomy was complicated and prolonged, but she did eventually recover fully and return to her normal state of health. But she did file a lawsuit against Dr. Blue shortly thereafter.

Renee Tidwell:
Okay, so I want to hear more about that lawsuit.

J. Baugh:
Well, Renee, in this lawsuit, Mrs. Green alleged that Dr. Blue failed to remove her appendix during the first appendectomy. The lawsuit also pled fraudulent concealment and alleged that Dr. Blue failed to inform Mrs. Green that her appendix had not, in fact, been removed. Mrs. Green claimed that Dr. Blue never discussed the pathology report with her, and she even testified to this in her deposition.

Renee Tidwell:
How did Dr. Blue respond to this lawsuit?

J. Baugh:
He testified that he went over the pathology findings with Mrs. Green, not once, but twice, and that he documented this in the medical record. He went on to explain that his discussion with Mrs. Green about the pathology results is implied in his documentation, arguing that it only makes sense that he would've explained why he was recommending a second surgery, in conjunction with his recommendation for more surgery.

Renee Tidwell:
I think we need to dive a little bit deeper. Can you share with us more about how this case unfolded?

J. Baugh:
Sure. So, discovery was conducted in this case and the expert witnesses were disclosed by both Mrs. Green and Dr. Blue. The case was being prepared for trial when the parties agreed to participate in a voluntary mediation. After negotiations, the parties reached an agreement to settle the case.

Renee Tidwell:
Okay, so my next question is, why did the defense decide to settle?

J. Baugh:
Well, while Dr. Blue maintained that he did discuss the pathology report with Mrs. Green, he realized that this was a key issue in the lawsuit and his supporting documentation wasn't strong. It can be difficult to predict how a jury will decide a he said, she said, issue. Dr. Blue also recognized that even though he had standard of care support from expert witnesses, it was going to be a challenge for him to explain to a jury how he performed an appendectomy on Mrs. Green but didn't end up removing her appendix. Because of this, he felt more comfortable resolving the case through a settlement as opposed to a trial.

Renee Tidwell:
Well, that makes sense. J., can you share with our listeners some main takeaways from this case? Like, what could Dr. Blue have done differently?

J. Baugh:
I definitely think there are some key takeaways to consider from this case. First, it was discovered that Dr. Blue received the surgical pathology report from the hospital in paper form, and the record was included in his office chart from Mrs. Green. However, there was no indication on the report that Dr. Blue actually received and read the report before filing it in the chart. This played into Mrs. Green's version of events that Dr. Blue never discussed the pathology report with her. It could be surmised that according to Mrs. Green, Dr. Blue never saw the report before it was filed in the chart.
So, a better approach would've been for Dr. Blue to sign or initial and date the report contemporaneously upon reviewing it, and then file it in the chart. Doing so would've supported his assertion that he did receive and review the report.

Renee Tidwell:
That's a pretty important point to make. Always sign and date reports before filing them away, right?

J. Baugh:
Always. That's right. Now, there was a major weakness though in this case that I would like to highlight. Dr. Blue's failure to document his conversation with Mrs. Green informing her of the findings of the surgical pathology report. Memorializing the conversation in the medical record would've been equally awkward. However, failing to document this conversation did nothing to change the fact that Mrs. Green's appendix had not been removed. That was the true reality of the situation, and Dr. Blue should have made that clear in his documentation.

Renee Tidwell:
So, you're saying that things never would've gotten that far had Dr. Blue simply documented everything?

J. Baugh:
Exactly, Renee. Documenting the conversation using clear, precise, straightforward language was all Dr. Blue could do at this point to best manage this unfortunate circumstance. Further, from a legal standpoint, by documenting this conversation, Dr. Blue is also recording Mrs. Green's discovery of the alleged negligence, which could begin the running of the statute of limitations.

Renee Tidwell:
I'm not familiar with the term running of the statute of limitations. Can you explain what that means?

J. Baugh:
Of course. That simply means a period of time within which a plaintiff has to file her lawsuit. Now, this period of time will differ from state to state. In most of the states in which SVMIC does business, the statute of limitations is either one year or two years, depending on the laws of the state in which the physician practices.
Now, another factor about the statute of limitations that differs from state to state, is when the statute begins to run. In some states, the statute begins when the medical treatment occurs, and other states have what is known as the discovery rule, which means the statute doesn't begin to run until the patient discovers that the alleged malpractice has happened. For example, if this case occurred in a state with the discovery rule, the statute of limitations would not have begun to run until the patient discovered that the appendix was not removed during the first surgery. If this case occurred in a state that did not have the discovery rule, the statute would've begun to run at the time of the first surgery.

Renee Tidwell:
Thank you for that explanation. Now that we've discussed the main weakness in Dr. Blue's case, were there any other takeaways you'd like to highlight?

J. Baugh:
Yes, there are a few other issues within the documentation that we should discuss. There was a problem with Dr. Blue's documentation of his discussions with Mrs. Green recommending the second surgery. He never clearly explained in the documentation what was discussed with the patient and why. This made the medical record open to subsequent interpretation and manipulation, allowing Mrs. Green to take advantage of the imprecise documentation to construct an alternative version of events that better benefited her interests in the lawsuit.
The documentation also failed to explicitly describe Mrs. Green's refusals for surgery and why. Anytime a patient refuses to follow the recommended medical advice, it is imperative that the provider fully and thoroughly document the patient's refusal, and the provider should use clear, precise, and straightforward language in the documentation. And the final issue with Dr. Blue's documentation involves his use of a scribe.

Renee Tidwell:
Can you elaborate a little bit more on that? I know our physicians are really busy. What are the risks associated with a scribe?

J. Baugh:
Well, scribes can be an efficient time saver, but physicians still need to invest the time needed to carefully review the documentation and make any necessary revisions before finalizing and signing the record. A small investment of time by Dr. Blue when the medical record was created would've substantially improved the defensibility of the claim several years later.

Renee Tidwell:
What documentations could Dr. Blue have made that would've prevented the lawsuit from being filed in the first place?

J. Baugh:
Well, there are three main things Dr. Blue should have documented. The chart should have clearly reflected, one, that he informed Mrs. Green about the pathology results. Two, that he recommended a second surgery in response to the pathology findings, and three, that fully informed of this, Mrs. Green decided not to follow Dr. Blue's recommendation to have a second surgery.

Renee Tidwell:
Okay. Those are some great takeaways, J. Thank you for explaining that. Before we wrap up, are there any last minute nuggets of wisdom you'd like to convey to our listeners today?

J. Baugh:
Sure, Renee. I do want to point out a few final things. A few main issues that led to Mrs. Green having two appendectomies were the fact that her appendix was in a retrocecal position, so it was not able to be visualized until her colon was lifted. Additionally, her abdomen was significantly inflamed at the time of her first appendectomy. Finally, Mrs. Green was morbidly obese.
These three factors complicated the surgical picture for Dr. Blue, making it difficult for him to accurately determine the location of her appendix. Fortunately for Mrs. Green, she is now definitely appendix free. But, the moral of the story really is that all documentation needs to be thorough and needs to accurately reflect every discussion or interaction with the patient.

Renee Tidwell:
So, to wrap up, as a reminder for our policy holders, if you've got questions, we have attorneys in our Claims Department that you can speak to about any questions or concerns you may have. J. is one of those attorneys. J., just thank you for being here and sharing this case with us today. It was very insightful. With that, we're going to say goodbye.

Speaker 1:
Thank you for listening to this episode of Your Practice Made Perfect. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast.
The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policy holders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time.