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Secure a Rich Record to Draw From – Just in Case

Medicine need not be practiced through the lens of litigation. Recording the relevant information for your thought processes, however, will only help should that be where you end up.

A 61-year-old woman visited Dr. GOS, gynecologic oncology surgeon, on the referral from her OB/GYN for suspected endometrial cancer. Findings from a D&C performed several days earlier detected endometrial adenocarcinoma.

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Dr. GOS took a history of significant hypertension but no diabetes or hypothyroidism, or cardiac, pulmonary, gastrointestinal, renal, or central nervous system disorders. The patient’s BMI was 39.

Dr. GOS’ impression was Grade 1 endometrial cancer and the patient consented to a total abdominal hysterectomy, bilateral salpingo-oophorectomy, and retroperitoneal lymphadenectomy – plus cytoreduction if necessary. A paragraph in Dr. GOS’ four-page printed informed consent form explained a risk of blood clots at 1%-2% and advised that “typical measures we take to minimize this risk include prophylactic stockings and early ambulation after surgery.” The paragraph concluded by stating that “DVT and PE can be treated with blood thinning medications, but PEs are serious and can result in sudden death.”

Prior to the surgery, Dr. GOS wrote prophylaxis orders for venous thromboembolism, noting the patient’s moderate risk for DVT. Though the “high-risk” category on the hospital risk level form included patients with major abdominal or pelvic surgery, Dr. GOS did not consider the patient as high risk. Starting on post-op day two, the patient received Lovenox and mechanical thromboprophylaxis for the remainder of her hospital stay.

On the patient’s discharge five days post-op, Dr. GOS ordered a home health nurse to assist the patient. He did not include any medication or mechanical prophylaxis for DVT or PE in his discharge orders, but he did include a two-wheeled walker and medications for nausea and pain. The patient was to see Dr. GOS again in three weeks. The home health nurse did not contact Dr. GOS with any concerns during those three weeks.

During the patient’s follow-up visit, Dr. GOS noted no complaints of leg pain. Though Dr. GOS did not chart it, the patient later said that she needed to use the walker and that Dr. GOS advised her to do more walking without the device. The patient asked if she could go on an out-of-town trip and Dr. GOS said that would be okay. Dr. GOS removed the patient’s stitches.

Three days later, the patient was admitted to the ER with signs and symptoms of deep vein thrombosis in her right leg. She relayed that on getting up from the toilet the day before, she felt sudden, 10 out of 10 pain associated with numbness. At the ER, she commented to the healthcare providers that she had not been ambulating following her surgery as much as she thought she was supposed to.

A chest CT angiogram revealed extensive bilateral pulmonary emboli and thromboembolic occlusions in several arteries. A thrombolysis surgery was successful but ischemia to the right leg required an above-knee amputation. The patient sued Dr. GOS for allegedly mismanaging her DVT risk and the legal dispute was resolved informally without trial.

In his deposition, Dr. GOS testified on the course of his treatment of the patient. When the patient’s attorney asked why he did not order post-discharge Lovenox, Dr. GOS stated that other than increasing physical activity, the standard of care in gynecologic oncology at that time was to not continue anti-thrombotic prophylaxis for surgical patients with no complications. When asked to explain the basis for that comment, Dr. GOS cited to medical literature of the American College of Obstetrics and Gynecology. The plaintiff’s attorney followed up by asking Dr. GOS if he was familiar with an article from Chest magazine from several years prior titled “Prevention of VTE in Non-Orthopedic Surgical Patients.” Dr. GOS responded that he was not familiar with that article.

Citing to literature for justification of medical care carries the risk that the facts and assumptions in the articles may differ from the case at hand. Opposing attorneys will also attempt to introduce other articles into evidence offering different guidance. Defense counsel can well manage these evidentiary skirmishes, but the time spent on such exchanges probably do not advance a physician’s case with the jury.

A better impression for jurors is a physician who can show in the medical record his or her thought processes for major decisions or who can recount a discussion with the patient on his or her recommendations regarding significant risks.

Again, this does not mean practicing medicine with one eye on the courtroom. But if you do end up in litigation, doing those things that a juror would expect from his or her own physician will count for a lot.  

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to