Time and again, trials come down to documentation. A witness will usually testify as to the onset of symptoms, presentation for medical care, and the history and complaints described to nurses, physician's assistants, and doctors. These patient recollections may later be criticized, or cross-examined, by reference to the records of some medical facility or practitioner. For example, the witness testifies to contemporaneous complaints after an accident, of pain in both knees. However, that practitioner's medical records document complaints as regards only one (left or right).
The inference to which attention is persistently and immediately drawn is this as an inconsistency. It is suggested, or forcefully argued, that the relationship of pathology or symptomatology in that other knee cannot be related to a particular event or accident ("if the other knee had been reported or complained of, the records would document that"). This line of argument is entirely founded upon the absence of documentation and support regarding that other knee in the records.
Many times, I have heard testimony that "if the patient had complained of the other knee, it would be noted in my records." Thus, the "absence of proof" in the medical record is asserted as "proof of absence" of the other knee complaints. Certainly, this is one potential interpretation. But, it is not the only explanation.
The absence might be readily explained. It is entirely possible that the injured party did not complain of pain in both knees, and the trial testimony impeachment of the patient is warranted. It is also entirely practical to believe that the patient did complain of both knees, but some professional (the doctor or staff) perceived predominance in the other complaint (the patient complained more of a particular knee; the professional was told in the authorization process to evaluate a particular knee, etc.), documented it as the primary issue, and through intent or neglect did not document what was then seen as peripheral or ancillary complaints. Through the power of suggestion, the "other knee" might not be documented.
It is also entirely possible that the failure to document all complaints was simply inadvertence. There is perennially insufficient face time in medical appointments, schedules are congested, days can become chaotic. Might something be overlooked in the challenges of a busy workday?
This thought returned to me recently when discussing physical complaints with a friend, J. Horace Middlemier, III. A year or so ago, Horace had experienced a series of symptoms spontaneously, with no accident or “injury“ to which any seemed related. However, he reported to his family physician and complained about three different physical maladies, and related complaints/symptoms. After an examination and tests, the doctor diagnosed a significant malady (lucky catch), ordered some further testing, and prescribed medication. The immediacy of that issue became the doctor's focus, and simultaneously, apparently, proved a distraction from the other two afflictions. After that primary diagnosis was brought under control months later, Horace decided to seek further care for one of the other two remaining complaints/injuries.
Upon returning to the physician after about six months of care for the first malady, however, Horace was surprised that the doctor did not even recall this second physical complaint expressed in that first appointment. Surely it would be in the doctor's records? However, upon thorough review neither the physician nor the patient could find mention of the second complaint in any of the doctors office notes. Horace was confident that he had mentioned this second malady at both the initial appointment and several times thereafter ("still having issues with my _______, but that can wait until we get the _____ under control"). Just when Horace began to think that memory was playing tricks, the doctor retrieved from a paper file, not the digital medical record, a document titled “patient intake.“
This document was completed by Horace in the waiting room at that first appointment. It was not kept with the office notes in a digital format (never scanned electronically). All of the doctor's thoughts, impressions, and testing - the progress notes - were maintained digitally. During this physician's patient interactions, all thoughts, diagnosis, orders, or prescriptions were maintained by the doctor in a computer tablet she carried from examination to examination. The "intake" was instead merely a paper upon which were a series of inquiries.
When he first presented for care, Horace had responded upon that form. In the initial appointment, the physician and staff had used that form, but then it was filed away but for some reason never scanned and made a part of that digital record that included all the physician thoughts and conclusions. Data from it had been input (keyed) for care quality (allergies, prior surgeries, etc.), but a data entry clerk had essentially decided what was important. That did not include the secondary and tertiary complaints that Horace had expressed when presenting for care.
On that paper document, clearly stated, were all three of Horace's initial complaints. Thus, a relief for Horace and support that his memory was not, in fact, failing.
The point is that mistakes happen. Documents may be filed in a manner that frustrates locating them upon demand, as happened to Horace. Even when filed appropriately, such documents could be misfiled in the wrong chart. Such a form might easily be lost, misplaced, or overlooked (as with the data clerk electing what to highlight). Primary, serious diagnoses may distract a professional from appropriate documentation of other complaints which, in the moment of initial comparison, may seem less serious or pertinent. As attention becomes focused on one malady, less serious or exigent complaints may be sidelined.
It is critical that every patient seriously focus on the completion of such patient intake documents. These somewhat tedious forms deserve attention and are critical for thoroughly documenting the substance and breadth of complaints. These documents are in the sole control of the patient for completion. The patient alone decides what, and how much, is included in those responses. During most medical encounters, they will be the only forms within the patient's sole control. These documents afford the patient with the opportunity to provide as much depth and explanation as they may wish about complaints, history, onset of symptoms, and more.
As for preventing misfiling, that may be difficult for a patient to influence. However a patient with a camera phone can easily later produce a copy of such a document. If a photo is taken by the patient when such forms are completed, the meta-data in such a photo should substantiate the date and time such photograph was taken. A patient who is careful in their paperwork completion, and who retains a copy even by way of photo, will be best prepared to proceed in the event of any misunderstanding, mistake, or misfiling.
It may also be helpful to avoid presenting at such doctors appointments alone, so that a family member or friend can assist with completion of such forms, remind to make a photo of such records, and can later attest to what was said to whom. The person accompanying the patient might very well do the writing, and the photographing. Later, at trial, the testimony might then be "was the other knee complaint reported to Dr. _______?" and "yes, Ms./Mr. described it to me and I wrote it on the intake form; I have a picture of that form if that is helpful."
There are those who approach medical care with a detached and objective perspective (professionals). It is perhaps harder for patients like Horace though. Following an injury, the details and maintenance of medical records are likely not any patient's priority or focus. The patient is confronted with discomfort, pain, fear, and more. There is benefit in retaining focus on records, if one can. However, perhaps the best suggestion is the involvement of a family member or friend who can provide support, reminders, and focus on this documentation of the interactions.
“Grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.”
The patient should "know the difference." If the patient is capable of focusing on the forms and making a photo record, the patient should. If the patient is not, then bring a friend or family member that can. The "wisdom" is in knowing whether you can or cannot and acting upon that knowledge. There is no shame in bringing someone along to help you through the medical interaction and process. And, it might just provide the evidence to change your case in the litigation process. Horace was lucky, but there are limits to luck.
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