By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
News: A woman underwent surgery on her wrist with no initial reported complications. She was instructed not to soak her hand until after the sutures were removed. The patient reported multiple symptoms, including pain, redness, and swelling. She had multiple follow-up visits, but the surgeon failed to diagnose or treat an infection. After visiting a different facility, the patient was diagnosed and treated, but the delay caused significant loss of function to her hand.
The patient sued, alleging that the delay and lack of treatment constituted malpractice. The defendant providers denied liability and claimed that the patient initially reported (but then denied) soaking her hand. A jury agreed with the patient and awarded $1.18 million, which was upheld on appeal.
Background: On Jan. 7, 2016, a woman underwent surgery on her right wrist as a treatment for carpal tunnel syndrome. There were no reported complications during the surgery, and the patient was discharged from the hospital the same day. Before discharge, the surgeon instructed the patient to return in 10 days for suture removal. The surgeon also told the patient not to soak her hand in water, which would reduce the risk of infection. A nurse provided written discharge instructions that stated, “Keep hand clean and dry until sutures removed; no soaking hand in water.”
Within three or four days, the patient reported that her wrist felt “warm” to the touch, and the incision area was red. The patient contacted the surgeon’s office and spoke to the medical assistant, but no action was taken. The patient called the surgeon’s office multiple times, asking for more or different pain medications, which were refused. The medical assistant did not record a note for each call but claimed to have discussed each call with the surgeon. The medical assistant claimed that the patient never reported that the wound was red, hot, foul-smelling, swollen, or any other circumstances that would have suggested an infection.
Approximately seven to 10 days after the surgery, the patient returned for suture removal. The surgeon’s medical assistant removed the patient’s sutures and noted that the wound was not infected or swollen. The surgeon’s physician assistant also examined the patient and did not find any remaining sutures, nor did she see any infection or redness. One day later, the patient called and asked to see the surgeon, but she was denied because the medical assistant said the patient’s wrist was “fine.”
The patient continued to report pain, swelling, and redness, noted that her wrist began to ooze at the incision location, and reported an odd smell. The patient called several times, but no follow-up visit was scheduled. The medical assistant claimed that the patient never mentioned redness or pain symptoms after the sutures were removed, and if the patient had reported such symptoms, the medical assistant would have immediately brought the patient in and told the surgeon.
On Jan. 22, the patient went to an emergency department (ED) seeking treatment for pain in her wrists. ED physicians diagnosed the patient with an infection, prescribed antibiotics, and told her to schedule an appointment with the surgeon. On Jan. 25, the patient spoke to the surgeon’s office and made a follow-up appointment for the next day. At that appointment, the surgeon recommended immediate surgery to treat the infection. A note dated Jan. 26 claimed that the suture removal was unremarkable, did not note any problems, and listed that the patient noted she had been soaking her hand at home. However, the patient subsequently denied soaking her hand after the surgery.
On Jan. 26, the patient underwent surgery to treat the infection. She remained in the hospital for 11 days, during which she underwent two additional surgeries. The patient eventually recovered but lost significant use of her right hand. The patient filed a malpractice suit against the surgeon, the medical assistant, and their practice group. The patient argued that the delay in diagnosing her infection resulted in significant progression of the infection, requiring three additional surgeries and an 11-day hospital stay. The defendants denied liability, and two experts testified that the patient’s hand-soaking caused or increased the severity of the infection. However, neither expert could pinpoint when the soaking occurred.
After a four-day trial, the jury awarded the patient damages of $1.18 million. The defendants appealed, arguing that the trial court erred by failing to instruct the jury that the patient contributed to her injury. The appellate court upheld the ruling, noting insufficient evidence that the patient failed to mitigate her damages.
What this means to you: One of the primary takeaways from this case is the importance of keeping thorough and accurate records. A significant issue occurred when the patient allegedly soaked her hand. While the patient denied soaking her hand at all, the defendants’ records noted that the patient had been soaking her hand at home. However, the records did not indicate when that alleged soaking occurred — and it made a crucial difference as to whether the patient was partially at fault. If the patient had soaked her hand before the sutures were removed, then she violated the instructions provided by the surgeon after the surgery. Alternatively, if the patient soaked her hand after the sutures were removed, then it would be unproblematic.
Unfortunately for the defendants, the timeline was unclear as to whether the patient soaked before or after suture removal. The records merely indicated that she “had been soaking her hand,” without specifying when. Based on the multiple visits, this ambiguity led the court and jury to conclude that the patient may not have been responsible for causing or exacerbating her injury. The defendants made this argument and presented two experts who testified that the patient’s hand-soaking would have caused or exacerbated an infection.
This ambiguity would have been resolved had the care providers simply asked the patient “When did you soak your hand?” after she reported soaking. Ultimately, it still might have been an unfavorable result for the providers if the patient had soaked it after the suture removal, but that nevertheless would have enabled the defendants to better understand and consider their prospective liability.
Keeping thorough and accurate records also is important given the length of time that lapses between the underlying medical services and the potential for legal action, particularly trials. The patient’s surgery occurred in January 2016, with the trial proceeding years after that. Memories inherently fade, and whether a patient claimed to take an action or not may be determinative to the case, yet difficult to prove. Here, the patient denied reporting that she soaked her hand, while the medical records contradicted that. Providers who keep contemporaneous records that are consistently thorough and accurate will have a better time arguing to a court or jury that their version of the events, as confirmed by the written records, is the correct version of events. On the other hand, providers who do not keep records or who keep sparse, vague records do not have the advantage of referring to contemporaneous documents from years ago.
Here, the surgeon vaguely listed that the patient soaked her hand but did not list when, which resulted in the jury finding insufficient evidence to support the defendants’ argument that the infection was caused or exacerbated by the soaking. The appellate court recognized that even the facts most favorable to the defendants did not show that the patient failed to mitigate her injuries, or how the supposed hand-soaking exacerbated the patient’s injuries. It is easy to contemplate how a single question posed to the patient, with the response included in the medical records, could have flipped this entire case: The defendants could have demonstrated that the patient defied their instructions, caused, or aggravated her injury, and thus she was at fault. Alternatively, the defendants could have recognized the lack of sufficiency sooner by knowing that the patient soaked it after the suture removal and could have pushed to settle the case for a substantially lower figure.
Finally, it is important to note that the patient was only communicating with the medical assistant in the initial postoperative period. A medical assistant cannot assess a patient’s needs, diagnose an infection (or lack of one), order treatment, document symptoms in the medical record, or provide any intervention except to communicate data to the attending physician or equally qualified designee. Physicians need to rely on paraprofessional assistants who are qualified and licensed by state and federal agencies after significant and appropriate training. A second issue involves the continuing complaints of pain and swelling that were not resolving as expected. If the postoperative course is not following the expected path, there often is a reason that must be investigated. It is always prudent for the physician to make time to look at and listen to patients and not assume anything until they do. Paying attention to expected outcomes is only going to benefit both the patient and physician if the physician pays even more attention to the unexpected outcome.
REFERENCE
- Decided Jan. 30, 2024, in the Court of Appeals of Virginia, Case Number 1521-22-1.
One of the primary takeaways from this case is the importance of keeping thorough and accurate records. Keeping thorough and accurate records is important given the length of time that lapses between the underlying medical services and the potential for legal action, particularly trials.
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