Tucker Poling, JD
Vice President of Claims and General Counsel

Tips from the Trenches is a semi-regular column offering insights on reducing medical liability risk using real-world case examples. The cases in this article have been de-identified for privacy.

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In Kansas, healthcare providers often enjoy warm and very familiar relationships with patients–especially those who practice as members of close-knit communities. This is a good thing. In addition to the professional and personal satisfaction a healthcare provider gains by improving the lives of their friends and neighbors, strong provider/patient relationships tend to correlate with improved outcomes and reduced risk of malpractice lawsuits.[1]  

However, we sometimes see cases in which healthcare providers let down their liability risk reduction guard because of their close relationship with a patient or a patient’s family, thus opening the door to malpractice lawsuit allegations.

Most commonly, we see healthcare providers manifest this mindset in the following ways:

• Not documenting communications because feelings of personal trust with the patient make such documentation seem unnecessary.

• Not engaging in the same kind of informed consent discussion they would have with a patient that was not well known to them because they feel they have a pre-existing understanding of the patient’s tendencies, values, or preferences.

• Not following other routine liability risk management practices because familiarity makes such things feel like mere “technicalities.”

Although some facts have been changed, the following are example scenarios inspired by actual lawsuits filed in the Midwest in which familiarity may have led healthcare providers to make exceptions to their usual liability risk reduction practices.

Case 1: Boleyn v. Aragon, M.D.

The Incident

• Cathy Aragon, M.D., a highly respected and loved physician in her small community, had treated 23-year-old Annie Boleyn since the day Dr. Aragon delivered her. Dr. Aragon was the primary doctor for the entire Boleyn family, who had lived less than half a mile from Dr. Aragon for 30 years.

• When Dr. Aragon delivered Annie’s healthy, full-term infant, one complication was a fourth-degree perineal tear. She knew that it was generally better to repair such tears as soon as possible and that the outcomes were often less than optimal no matter who performed the repair. She felt she had the necessary training and education to repair the tear, and she’d successfully repaired similar tears in the past. She also knew Annie and her family very well. She knew there was zero chance Annie would want to be separated from her newborn and sent by ambulance to a hospital an hour away for a surgical specialist to perform the repair in the hope there might be a marginally better statistical chance for an optimal outcome.

• Rather than briefly explaining to Annie the core risks and benefits of an immediate repair attempt versus the option of an immediate transfer to Kansas City to see a surgical specialist (and then receiving the response Dr. Aragon knew she would receive: “No way – just fix it here”), Dr. Aragon simply explained to Annie that she had a severe perineal tear, and she needed to repair it right away.

• As is often the case with such repairs – no matter where or by whom they’re performed – Annie’s repair was only partially successful and did not heal well. She required follow-up surgical treatment and dealt with unpleasant and embarrassing long-term complications.

The Lawsuit

• Annie didn’t consider blaming Dr. Aragon for her complications until a college friend told her she’d received a settlement check after her knee surgery didn’t turn out as she’d expected. She convinced Annie to meet with the same attorney who’d gotten her a settlement and reassured her that letting the attorney haggle with “some big insurance company” to get her some money wouldn’t hurt Dr. Aragon.

• Once the plaintiff attorney realized he had a potentially profitable case with a sympathetic young mother and could make the argument that she should have been referred to a specialist, the matter ended up in a protracted lawsuit and trial. The plaintiff attorney hired an expert witness who testified that Dr. Aragon should have immediately sent Annie to the Kansas City hospital for the repair to be performed by a specialist.

• At trial, although the defense presented expert testimony that Dr. Aragon had met the standard of care in her surgical repair of the tear, it was difficult for Dr. Aragon to overcome the fact that she did not inform Annie of the option of being immediately referred to a surgical specialist to perform the repair. The jury found Dr. Aragon liable.

The Takeaway

• In discussions with the jury following the verdict, it was clear that the jury had conflicted feelings about the case, and the verdict could have gone either way. The key issue that led the jury to issue their verdict against Dr. Aragon was that Dr. Aragon didn’t have the brief “informed consent” conversation with the patient she would have likely had if she hadn’t been so confident that she knew this patient and her wishes. Ultimately, even though the jury had their doubts that the outcome would have been any different, they felt Dr. Aragon should have given Annie the option of being sent to a specialist at the Kansas City hospital. If such a conversation had occurred and been documented, the jurors reported they would have issued a verdict in Dr. Aragon’s favor.

Case 2: Ames v. Gates, P.A.

The Incident

• Bob Gates, P.A., was covering the ED overnight on Friday in his hometown hospital. Rosy Ames, age 51, came in with her husband, Aldrich. Bob knew and liked both Rosy and Al, participating in many of the same school and church activities over the years. In fact, Rosy worked an office job at a local clinic where both Bob and his supervising physician saw patients 2-3 times per week.

• Rosy presented with uncontrolled high blood pressure (having failed to take her medication for the last week) and complaints of chest pain over the last few days. She reported that the chest pain that caused her to come to the ED that night had radiated down her left arm at the time but had largely resolved by the time they arrived at the hospital. Rosy was not in distress when they arrived, and she wanted to turn around and go home, but she agreed to let Bob administer nitroglycerin and order tests.

• Both Bob and the physician who read Rosy’s EKG results interpreted the EKG as normal. A chest x-ray was unremarkable, labs showed zero troponin, and Rosy’s blood pressure had begun to recede. Rosy made it clear to Bob that she was past ready to go home.

• Although this initial work-up was encouraging, Bob told Rosy that he wanted to admit her due to his concern for cardiac issues. Rosy resisted Bob’s suggestion and said, “I’m not staying here tonight.”  However, Bob didn’t document that conversation, and no AMA form was presented to her.

• Bob called his supervising physician, who also knew Rosy and Bob well, and advised him of the work-up and that Rosy was resistant to being admitted. They agreed that, although concerning, Rosy’s history and symptoms were consistent with uncontrolled blood pressure, and Rosy was at low risk for an acute cardiac event. Although they both preferred to admit Rosy, they agreed it would also be acceptable to discharge her with instructions to follow up within about one week for additional cardiac work-up if she promised them she would follow up. They decided it was more important under the circumstances to develop a care plan with Rosy with which she would agree to cooperate than to insist on admission and risk her leaving without a mutually agreed follow-up plan.

• Rosy agreed that she would follow up early next week if they let her go home for the weekend. Bob discharged Rosy to go home with Al with a diagnosis of high blood pressure and documented direction to follow up within 1-2 weeks for further work-up. The physician ordered a fast-acting blood pressure medication to get her through the weekend until her regular blood pressure medication could build back up to an effective level.

• Unfortunately, Rosy died from a heart attack at home five days later before returning for a follow-up.

The Lawsuit

• Rosy’s adult daughter felt angry toward Bob and his supervising physician for letting Rosy leave the hospital. Al agreed to visit an attorney just to hear their options.

• After the attorney collected the ED records and saw the cardiac symptoms documented in the records and the lack of documentation surrounding the discussions Bob had with Rosy in the ED, he convinced the family that the case could result in hundreds of thousands of dollars – if not millions – for their family. A medical malpractice lawsuit ensued.

• At trial, Al testified that he wasn’t in earshot of Bob’s undocumented discussions with Rosy about wanting to admit her, her resistance to that advice, or her promise to follow up early the next week.

• Fortunately, the trial resulted in a verdict in favor of Bob and his supervising physician. The jury found Bob’s testimony highly credible and concluded both he and his supervising physician had met the standard of care in their treatment of Rosy.

The Takeaway

• When Bob and his supervising physician were asked at trial why they didn’t push the patient more forcefully to agree to be admitted, didn’t ask her to sign an AMA form, and didn’t specifically document their conversations recommending admission or her promise to follow-up after the weekend, they candidly admitted that their approach was less formalized than it would have been with a patient they didn’t know as well. Given the friendship and trust they felt with this patient and her husband, such paperwork felt like technicalities – Rosy knew what they recommended, and they knew what Rosy was and wasn’t willing to do. However, after having gone through the stress of a lawsuit and a 2-week trial, they also both regretted their relatively relaxed approach to documenting their efforts and communications with this patient.

• After the trial, the plaintiff attorney acknowledged that he would have never taken the case in the first place if the records had shown that Bob had recommended to her that she be admitted for further cardiac work-up, that she’d voiced resistance to his recommendation, that she’d promised to comply with an early follow-up plan, or if she’d signed an AMA form.

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Final Takeaway

In both cases, the health care was reasonable and appropriate under the circumstances. Still, the healthcare providers found themselves accused of malpractice because they didn’t protect themselves from liability allegations as well as they would have if the patient had been less well-known to them.

The final takeaway is that having close relationships with patients and maintaining strong liability risk reduction practices need not be mutually exclusive. Strong relationships with patients and their families are not harmed by following strong liability risk reduction practices, and the benefits of following such practices can include avoiding a lawsuit.  

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[1] AMA Journal of Ethics, Virtual Mentor, 2009;11(3):242-246. doi: 10.1001/virtualmentor.2009.11.3.hlaw1-0903.