Recently, I learned of a surgeon on the west coast who received a “love letter” from an attorney. By love letter, I mean a demand for several hundred thousand dollars.
The surgeon took care of a patient and recommended surgical treatment. The patient did not want any down-time and opted for conservative care, fully understanding the surgeon thought surgery was a better option. Still, the surgeon believed that the patient could try conservative management over time, and if need be, more aggressive treatment could be done down the road.
The patient did not improve.
The attorney’s “love letter” alleged the surgeon should have fixed a minimally displaced fracture acutely in the operating room. The fracture was splinted and followed. The fracture healed with an angular deformity (a deformity that causes no symptoms in most patients).
The patient left the practice and saw another doctor – a surgeon who practiced in a different specialty. The new doctor had limited background, training, and experience in the procedure the original surgeon recommended. In contrast, the original surgeon had extensive experience.
The second surgeon performed the procedure; osteotomy and internal fixation.
The patient had a significant complication and the second surgeon had to re-do the procedure.
Likely, the second surgeon threw the first surgeon under the bus. He likely said something like “if only your first doctor had repaired it properly…you never would have needed more extensive surgery or experienced any complications.” Who knows?
The medical record is sparse regarding the patient’s affirmative choice for conservative care. Had the doctor added one sentence – stating he recommended surgery acutely, but the patient wishes conservative care for the following reason….. – the love letter would not have been sent. If this evolves into a lawsuit and the patient is deposed, he will need answer truthfully about his choice. I don’t see this evolving into a full-throttle lawsuit. But, one sentence added to the record would have eliminated the risk.
I agree with the comments of the need for documentation. When I was sued it was my meticulous medical record that was what allowed the case to be dismissed. Having said that, plaintiffs will lie to get what they want. Document document document. It will not stop the lawsuit but it will make your attorney and malpractice companies job of defending you much easier.
Doctors should not let the patient dectate the treatment. If you think that right treatment to do is proper surgical approach, and patient does not agree with your treatment guideline, do not treat this patient. Ask the patient to seek second opinion. Do not let patient to force you to treat him/her according to their wish, as they are not educated in medicine or surgery and do not understand consequences of improper or half hearted treatment. Of course, they are always ready to point the finger at you and run to the attorney when they do not get results to their satisfaction. Make proper and detailed notes in patient’s chart about all the conversations, recommended treatment, and whether patient is compliant or not. Do not continue treating non compliant patient.
All of the expert healthcare attorneys tell us that we must provide patients with informed consent so that they can be “partners” in medical decisions with us. We are supposed to be thorough, but still use language they can understand, including the risks and benefits of the procedure you are recommending.
Yet there has always been a “disconnect” between patients’ understanding of benefits, risks and possible complications and your own understanding. Another complexity not typically discussed in patient-consent issues is the risks patients have of being off work during a treatment program or surgery. Absenteeism, even if it is excused is not tolerated in our present work environment.
I had patients who told me that if they were gone even one day…not to come back to work. They saw a podiatrist because they could barely walk, but had no choice but a standing job. They might have weighed 350 lbs. but they still expected miracles from me.
Ruptured tendo Achilles’ represent a very specific biomechanical problem along with the damage to the actual tendon, in that in many cases, these patients often had a concomitant shortened aponeurosis. Without lengthening the Achilles complex, along with re-approximation, a conservatively treated patient would have a very strong likelihood of another traumatic rupture, or if not, considerable residual disability.
Dr. Dalal’s advice is reasonable, but may not be practical for hospital or HMO physicians who cannot really REFUSE to treat. We need to tell all of our patients who demand conservative care that there is a downside to that plan, and that sometimes waiting is not the best idea. This comes up with diabetic patients, who have the circulation to heal a major problem now, but may not in the future. Waiting for them might be waiting too long.
Editor is correct: All of this must be thoroughly charted.
Michael M. Rosenblatt, DPM
Ultimately it doesn’t matter what you record or not. It’s a matter of how stupid your local judges and juris are, how lame brained your attorney is and how avaricious your clientele are.
In this case, did the surgeon who recommended surgical treatment follow the patient with scheduled follow up visits when the patient insisted on conservative treatment? That may have been the reason the physician patient relationship became broken and the patient went on to see another patient. This could be considered a form of abandonment, at least until the fracture healed and the patient had been rehabilitated. If on the other hand the patient did not show up for scheduled appointments the patient should have been discharged from care with a formal letter stating that the reason for the discharge was in not following the physician’s advice regarding surgery, and in not following the physician’s advice regarding follow up appointments and rehabilitation. That same letter should refer the patient back to either the original referring physician (with copy of the letter to that physician), and possibly also a list of other surgeons and their office numbers in the area that could treat the patient (either in the same specialty or an equivalent specialty). That would have closed the loop and the relationship with the patient. Physicians have been sued by patients for not treating them, even though they had not even seen them, simply because an appointment was made, is on the physician’s appointment calendar and the patient did not show up. We always let the referring physician’s office know if a patient that was referred was a no show. In the above instance attorney’s claim there is a physician patient relationship simply because an appointment was made and is in the appointment book. I still find it difficult to believe that the law permits a claim of a doctor patient relationship when the physician has never seen the patient.
We cannot in this day and age be paternalistic and dictate the care the patient is to receive to the patient. The patient may be unreasonable. That is an opportunity for us to educate the patient as to the potential relevant outcomes from a lack of treatment, as well as from conservative or aggressive forms of treatment. That is at the core of informed consent. It is our job to explain the pros and cons of each form of treatment. Once a patient is educated to these choices, the patient may or may not agree to follow our recommended course of action. They will usually remember our having an extended conversation with them about their choices. We can respect their choice, but not agree with it, and then refer them to another physician that would be a better choice to follow the patient for their preferred course of treatment. A very wise dear departed friend of mine had this conversation with a Jehovah’s Witness patient. The contemplated surgery was likely to require blood transfusion which the patient in advance told the surgeon they would not consent to, citing their religious beliefs. The surgeon told the patient that he understood, but told the patient that his religious beliefs would not permit him to allow a patient to die from a lack of transfusion. The patient understood his religious beliefs and thanked him for his candor. Meanwhile he referred the patient to another colleague to perform the surgery (and would agree in advance to not performing a transfusion). My friend created goodwill, and avoiding getting into a conflict over necessary indicated treatment the patient was refusing in advance.
Lee’s right here–paternalism isn’t the answer, at least for the vast majority of patients. I didn’t make decisions for patients unless I was certain that they just didn’t have enough brainpower to understand explanations. Probably happened 3-4 times in my entire career.
But I agree that it’s not OK to allow a patient to allow a doc to do something that the doc doesn’t feel comfortable doing–conservative management of a fracture in this case. I’ve fired patients, or refused to have a doctor-patient relationship with them in the first place on numerous occasions. The last several years of my practice I refused to treat aneurysm patients electively if they were smokers. Just wouldn’t do it since their complication rates are somewhere between 10x and 100x non-smokers’. If they stopped for a month, I’d accept them, but I drew the line and didn’t cross it.
But: you wrote: “Had the doctor added one sentence – stating he recommended surgery acutely, but the patient wishes conservative care for the following reason….. – the love letter would not have been sent.”
I believe that is naive. The “love letter” would’ve been sent anyway. This is clearly a frivolous suit and the lawyer knows it; he’s pinging the system to see if money will fall out of the tree without going to trial. All the doc has to do is show his operative schedule and the ratio of surgical to non-surgical treatments for this fracture to establish a 51% likelihood–and most likely a MUCH higher than 51% likelihood–that he’s telling the truth in court, that he recommended open treatment over conservative. Likewise the fact that he’d make more money operating than just casting goes a long way toward convincing juries.
Just sayin’.