This month we look at a case where the physician remembered things differently than the patient. This is a common scenario, and again highlights the importance of thoroughly documenting conversations with patients.

Dr. B, 45, was a general practitioner working in a clinic in a low-income neighborhood. He had been working at the clinic for close to 10 years and was starting to feel burned out. The clinic handled a variety of patients, some of whom had emotional or other issues, some who had not had access to medical care in many years, and some who were accompanied by social workers.

One patient who came in frequently, with and without a social worker, was Ms. W, 28. Ms. W lived in a nearby residence for women who were getting back on their feet. Her early life had been challenging, and she had been homeless for a brief period in her early 20’s when she was abusing drugs. After getting help for her drug problem and getting clean, she became pregnant. She had recently given birth and was struggling with the responsibilities of being a single mother. 

When Dr. B saw her in the waiting room with a social worker, he sighed to himself. Ms. W was a “slow talker” – she spoke very slowly and tended to veer off topic during appointments. He still had a full waiting room of patients to see, and it was already afternoon. He called Ms. W (with her social worker) into the exam room and asked her what the problem was. She began telling him about the recent birth of her child and how she felt overwhelmed and was crying all the time and felt hopeless and unable to cope with the baby on her own. 


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Ms. W began talking about the tribulations of being a new mother again, and how grim everything seemed, and Dr. B interrupted her.

“This seems to be postpartum depression,” he told her. “It’s common and affects many women. I will prescribe something that should help you.”

He wrote her a prescription for lamotrigine to treat the condition, told her he hoped she would feel more positive very soon, and ushered her out. 

About a week after starting to take the lamotrigine, Ms. W developed a rash on her legs. She called the clinic, but Dr. B was in with another patient, so she left a message with the receptionist. The physician was too busy to call her back that afternoon. The next day she left a few more messages. Dr. B saw the messages but again was too busy to call her back right away. He swiftly was caught back in the stream of newly arriving patients, and forgot about the messages.

After not hearing back from the clinic, Ms. W went to the local emergency department to have someone look at the rash. She went on two different occasions in the first week that the rash had developed. A dermatologist and a gynecologist examined her, but neither associated the rash with the medication. As a result, Ms. W continued to take the lamotrigine even as the rash began to spread across her body. When Ms. W’s lips and gums began to blister, she stopped taking the medication and returned to the emergency department where she was immediately transferred to the burn intensive care unit. Upon admission to the hospital, she had severe burns over 60% of her body, as well as blistering and burns to her oral, vaginal and rectal mucosa. She was diagnosed with Stevens-Johnson Syndrome, a potentially deadly reaction associated with lamotrigine.

Ms. W remained in the ICU burn unit for three weeks. She ultimately survived, but was left with scarring on her arms, legs, chest and neck, and was left with no finger- or toe-nails. During her time in the hospital she was unable to care for her newborn child. 

After she recovered, at the encouragement of a friend, she went to see a plaintiff’s attorney to ask whether she might have a case. “Did the doctor warn you about this potential reaction and tell you to stop taking the medication immediately if you develop a rash?” asked the attorney. “No,” said Ms. W, “and my social worker was there and can tell you the same thing.”

The attorney took the case and sued Dr. B, as well as the two physicians that Ms. W saw during her first two emergency room visits. 

When Dr. B received notification that he had been sued, he contacted the defense attorney provided by his insurance company. “There is a black box warning for this medication,” said the attorney. “Did you warn the patient to stop taking it if she developed a rash? The patient is claiming you did not.”

“Of course,” said Dr. B. “I would always give that kind of a warning.”

“Did you note it in the patient’s chart?” asked the attorney.

“Well, no,” said Dr. B. “But I guess then it would just be my memory versus hers, and I would think that I’m more likely to be believed.”

Legal Background

During the discovery process, all the records and notes, as well as a list of potential witnesses and what they were prepared to testify about, were exchanged between the two sides.

Dr. B’s attorney notified him that the social worker who had accompanied Ms. W to the appointment was on the list of witnesses for the plaintiff. 

“She is prepared to testify that you did not warn Ms. W about the potential for Stevens-Johnson Syndrome,” said the attorney, looking grim. “Plus, they have a medical expert who will testify that failing to warn the patient was a deviation of the standard of care.”

The attorney advised the physician to settle out of court, which he did, for a sum within his insurance premiums.

Protecting Yourself

As a clinician, you may have to deal with a patient that you find challenging for some reason, or one that you’d prefer to rush out of your office a bit faster than others. This can never be an excuse to cut corners, which is what Dr. B did here. He failed to warn the patient because he wanted to get on with his afternoon, and he failed to return her calls because he was afraid he would get sucked into a time-consuming conversation.

Perhaps in his memory he did remember warning her, but without written documentation, it is as if it never happened. It is essential to document warnings, especially significant ones, like this. Memory fails – documentation doesn’t.

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