Allegation:
Negligent performance of Lapidus surgery and post-op follow up care resulting in delayed wound healing.
Case Details:
A 22 YOF was seen by podiatrist for a severe bunion on her right foot with a hypermobile 1st ray and a callus under her 2nd metatarsal head. The insured performed a Lapidus Bunionectomy, a Weil osteotomy, and hammertoe corrections on the right 2nd- 5th digits. Post-op instructions were reviewed with the patient and included appropriate weight bearing and that she was to always wear a walking boot. The patient was non-compliant which led to delayed union of the 1st metatarsal and altered weight bearing. She sued the podiatrist for negligence. A critical argument for the defense was that the Lapidus procedure would have healed correctly except for the patient’s non-compliance. The podiatrist clearly documented at each follow up visit that the patient was not wearing her boot or using crutches as instructed. He even documented his repeated urging and review of complications though the patient later denied these conversations. A social media inquiry found an incriminating post on one of the patient’s accounts that said, ‘The only thing this boot is good for is crushing my beer cans?’ This along with the providers thorough documentation convinced the jury that she was not as compliant as she claimed.
Expert Testimony:
The defense podiatry expert testified that the patient’s subsequent surgery, by an orthopedist a year and a half later was ill-advised and made the plaintiff’s condition worse.
Resolution:
After a short deliberation, a defense verdict returned in favor of the podiatrist.
Risk Reduction strategies:
The following documentation strategies can help enhance patient safety and reduce your liability risk:
- Develop and implement a medical record documentation policy and make sure it includes applicable state and federal laws and rules regarding retention periods.
- If using an EHR do not carry forward previous notes and make sure autofill and keywords are turned off otherwise notes may not reflect the uniqueness of each patient visit.
- Document contemporaneously so the details of each patient encounter are fresh.
- Document each instance of patient non-compliance or treatment refusal in the medical record with reasons for patient’s decision-making.
Conclusion
It is just as important to document a patient’s non-compliance or refusal of treatment recommendations as it is to document the consent process. Ask the patient for their reasons for going against medical advice and document their understanding of the risks of noncompliance.
Additional resource: Refusal of treatment forms see https://riskmanagement.proassurance.com/sample-forms
For more information see https://picagroup.com/
