For solo physicians the scenario can be quite common: two family practitioners share an office suite but are not partners. One physician decides to move on, offers his patient list to the other, and leaves the medical records in place. Many of the original physician’s patients start treating with the remaining practitioner. What could go wrong?
A 42-year-old firefighter treated with Dr. FP1 over the years and in an August complained of bloody stools. Dr. FP1’s handwritten note shows the gentleman was reluctant to have a digital exam that day and planned to come back for his annual exam soon. Dr. FP1’s impressions were rectal bleeding and internal hemorrhoids.
The patient returned to Dr. FP1 the next June complaining of off-and-on abdominal pain over the past year. the patient did not mention bleeding and Dr. FP1 did not perform the rectal exam discussed the previous August. three months later, however, the gentleman returned, complaining that his hemorrhoids “flare up more easily.” though Dr. FP1 did not document an examination of the anus or perineum, he wrote a “definitive” diagnosis of “internal hemorrhoids without complication” and “external hemorrhoids without complication.”
Dr. FP1 left the state that year and Dr. FP2 took over many of his patients. Dr. FP1 left his records in the office so that Dr. FP2 would have access to them for those patients who chose to use him for their care.
The patient’s first visit to Dr. FP2 was early the next year, when he was seen by a physician assistant for a sinus problem. The medical record makes no mention of any gastrointestinal problem. Two more visits, one in September with the PA and 12 months later with Dr. FP2, did not address any GI or rectal bleeding issues.
That changed the next year, when the patient complained to Dr. FP2 about having “diarrhea 4-5 times per day off and on for the past two years. No weight loss.” Dr. FP2 referred the patient for an air contrast barium enema and stool cultures.
The patient returned two weeks later with complaints of fever, fatigue, nausea, night sweats, and other problems. Blood tests showed anemia and an iron deficiency. Dr. FP2 sent the patient for an urgent CT scan of the abdomen and pelvis and set up an appointment with a gastroenterologist for the next day. When the scan results came back two days later, Dr. FP2 discussed with the patient the diagnosis of a malignant neoplasm of the colon.
The patient subsequently treated with an oncologist but died early the next year. His family sued Drs. FP1 and FP2. Dr. FP1 resolved the matter with the family. Did Dr. FP2 have any exposure?
The family’s attorney, known in the legal community as a skilled lawyer, advised Dr. FP2’s attorney that he would produce an expert who would testify that Dr. FP2 had a duty to review Dr. FP1’s medical records when the patient established the new relationship with him. Had he done so, the plaintiff attorney alleged, Dr. FP2 would have noticed the need to follow up with a digital rectal exam given the earlier complaints of bleeding. The stage was set for a battle between the plaintiff and defense experts over whether Dr. FP2 had a duty to review the earlier records and what effect such a review would have had on the patient’s outcome.
When a jury or arbitrator is free to believe one expert or the other, the human factor can easily take over. What would a juror expect of his or her own physician in such a situation? Did the arbitrator ever have his or her new physician discuss the medical history gathered by a previous physician? Dr. FP2 ended up also resolving the dispute prior to trial.
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc. (CAP).
If you have questions about this article, please contact us. This information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.