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While we were able to get the case against our client dismissed, a lesson was learned nevertheless. Documenting what is not found may be as important as documenting what is found.
Summary Judgment Achieved for Internist for Alleged Failure to Diagnose Sarcoma
A major challenge in achieving summary judgment was the lack of contemporaneous documentation of the care provided by our client, an internist. She had not documented findings on a critical examination. Nevertheless, we were able to establish that the treatment she provided was not negligent and that the patient’s death resulting from a sarcoma (bone cancer) was not a result of negligence on her part. We were able to overcome the lack of documentation with her persuasive and detailed deposition testimony.
The claim involved a failure to diagnose sarcoma in a 65-year old male, resulting in death. Our client treated the patient for six years for a variety of ailments, including diabetes, pain and calluses of the feet, and common cold and flu. During these years, the patient also presented with complaints of pain in the right wrist, hands, fingers, and shoulder. Our client sent the patient to specialists for consultations, and he was ultimately diagnosed with and treated for rheumatoid arthritis and osteoarthritis.
The suit alleged negligence throughout the entire six years. That was fairly easily refuted by extensive documentation of the diagnosis and treatment for these diseases and other conditions, with the exception of the last two visits. In December 1996, the patient complained to our client for the first—and only—time of pain in his right leg. The internist’s examination revealed nothing and she did not document her investigation and negative findings. Several weeks later, the patient returned with an unrelated issue and he made no reference to the right leg pain. The internist did not see the patient again.
The patient subsequently visited numerous other doctors, and over the next 18 months, according to their records, never mentioned the leg pain. It was not until 18 months after the last visit with our client that plaintiff was diagnosed with sarcoma.
The records from numerous doctor visits during those 18 months, plus our expert’s affirmation that substantiates the fact that it was reasonable for the internist to assume the once-mentioned leg pain was yet another manifestation of rheumatoid arthritis and osteoarthritis. This, in conjunction with our client’s deposition testimony where she described in detail her custom and practice in performing a physical examination and her custom and practice in only documenting positive findings, convinced the Court to grant summary judgment as to our client.
Linda J. DeCorato and Lauren C. Simon of DeCorato Sheehan Merolesi & Federico LLP represented the defendant in this case.
