By Louis Campbell, J.D.; C. Jacob Ladenheim, J.D.; Robert Sherman, J.D.; Louis Sportelli, D.C.
Failure to diagnose may be the single hottest, current area of malpractice litigation.
One approach to self-protection is to order every test and employ every diagnostic aid available for every case, with little regard for appropriateness or expense. While this may have some benefit for the doctor in showing that he made the effort to explore every possibility, it is not in the patient's best interest, nor is this tactic approved by the Mercy Guidelines. Moreover, overutilization of diagnostics is prohibited by disciplinary rule in many states and will subject the doctor to license suspension or revocation.
Case in Point
A plaintiff's attorney recently reported on her successful malpractice case in the legal newspaper, Virginia Lawyers Weekly. That case involved sisters Denise and Danielle Brinkman, whose parents sued their pediatrician after both girls developed a bilaterally dislocating, congenital hip disease at an early age. The children had received early and regular pediatric care, with Denise seeing the defendant for "well-baby checkups" beginning at five months and her younger sister at five weeks. During the course of those checkups, their mother complained to the doctor that both children walked and crawled abnormally and later than other children.Mrs. Brinkman would later allege that during the well-baby checkups the defendant failed to perform "usual and customary examinations of the hips and lower extremities." The doctor's records regularly recorded that examinations were "within normal limits."
Blueprint for Disaster
Ultimately, the parents acted on their own to take both girls for an orthopedic evaluation. They contended that it was the pediatrician's failure to diagnose the hip disease at an early stage that resulted in the need for surgery involving internal reduction with pins and screws. At the time their suit was filed, the older daughter was functioning normally, while the younger one had a limp, some pain, and was prone to tire quickly. Their prognosis, however, included the likelihood of future problems with arthritis and a need for "multiple hip replacements" later in life.What did this doctor whose examinations were "within normal limits" feel compelled to settle these cases for $450,000? Among his other problems, he failed to record whether he had performed examinations of the hips and lower extremities. His records said examinations were within normal limits, but he never said which examinations those were. "Within normal limits" without further elaboration is virtually meaningless.
These suits were brought several years after this doctor first saw Denise and Danielle. Certainly he had no credible independent recollection of the examinations he performed. His records were his only defense and they afforded very little help.
Record keeping was not the doctor's only problem, of course. The parents also alleged that he should have suspected the disease and ordered x-rays and/or referred to an orthopedic surgeon. He did prescribe orthopedic shoes but those are "not a treatment for congenital hip disease."
What It Means to You
This doctor surely felt he did nothing wrong. He was, no doubt, confident that he performed every reasonable and prudent examination and that the parents voiced no complaints which he failed to address, as they contended. The case against him was strengthened however by the fact that it was the parents and not the doctor who ultimately contacted the orthopedist. This was a prudent settlement for the doctor, one that virtually any similarly situated physician would have to seriously consider.Adherence to a few rules could greatly assist a doctor from finding himself in similar circumstances:
- Eliminate from forms all mention of tests which are never performed. They merely confuse matters and invite inquiry into the possibility they might have been helpful.
- Indicate in some fashion which tests were employed. Best way -- by listing time and noting the result. Second best -- checking them off on a preprinted list.
- Note all results even if "normal." To this extent the pediatrician acted prudently. Listing "normal" results leaves no doubt the doctor performed the test and considered the implications of normal results in conjunction with his other findings. No doubt, that is, unless he fails to mention the tests employed -- see rules 1 and 2.
Louis Campbell, J.D; C. Jacob Ladenheim, J.D.; Robert Sherman, J.D.; Louis Sportelli, D.C.
DCDynamic Chiropractic editorial staff members research, investigate and write articles for the publication on an ongoing basis. To contact the Editorial Department or submit an article of your own for consideration, email
.