Legal Background

The discovery process included depositions, which afford both parties in a lawsuit the opportunity to question witnesses in preparation for trial. It’s used as a preview of what the witness will say at trial, and is also used to impeach the witness’s testimony if she says something different at the deposition than at trial.

Dr. N’s attorney warned her to be honest and consistent at the deposition. As expected, the plaintiff’s counsel questioned Dr. N about whether the standard of care had been met by not providing or suggesting any colorectal cancer screening. Dr. N had to admit that the standard of care for a primary physician would require that. “But I wasn’t his primary care physician,” she said. “I was only hired to do blood pressure screenings.”

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The plaintiff’s attorney looked doubtful. “Where on the file or in your notes did you note that?” he asked.

Dr. N had to admit that there was no written note about the unusual arrangement.

On the advice of her attorney, the case was settled prior to trial for $1.5 million.

Protecting Yourself

Every physician will, at some point, be confronted with a patient who doesn’t want to follow advice, or declines physicals. You cannot force a patient to have a pap smear, a blood test, or a colon cancer screening, but the standard of care requires informing patients about the benefits and risks of these screenings, and offering these services. If the patient declines these services, note in the chart that the screenings were offered, the benefits explained, and that the patient declined. You are not just protecting yourself, you are also protecting your patient by explaining the benefits of screening.

Dr. N’s biggest error was her failure to make any note at all about her unconventional arrangement with her patient in his records. Once the patient died, there was no one left to confirm their arrangement, and Dr. N then appeared to be a negligent physician. Simply making a note could have spared Dr. N from this unfortunate situation.