Appendicitis is a well-known medical condition. According to the National Institutes of Health, five to nine people out of every 100 will develop appendicitis during their lifetime. It is most common in younger patients, teenagers, and individuals in their 20s, but appendicitis can happen to patients of any age. Id. It is the most common cause of acute abdominal pain requiring surgery. Id. Although appendicitis and appendectomy are common medical events, they are generally understood to be once-in-a-lifetime medical events. The patient in this closed claim, however, required two appendectomies. Her medical misadventure provides us with several helpful lessons on the important topic of medical documentation.
On February 3, 2014, Mrs. Green developed acute abdominal pain. She presented to the Emergency Department of her local hospital and, after examination and imaging, was diagnosed with appendicitis. Her care was referred to the on-call general surgeon, Dr. Blue, who was able to schedule Mrs. Green for an appendectomy that day. Intra-operatively, Dr. Blue found a severely inflamed abdominal cavity. The surgery took twice as long as is customary for Dr. Blue’s appendectomies. Regardless, Dr. Blue was able to perform the surgery without apparent complication and discharged Mrs. Green home the next day.
After discharge, Mrs. Green was followed closely by Dr. Blue in his office for waxing and waning complaints of abdominal pain, nausea, and fever. Mrs. Green returned to Dr. Blue for seven post-operative follow-up appointments throughout February and March. She was prescribed several courses of antibiotics.
Before Mrs. Green’s third office visit, Dr. Blue received the surgical pathology report from the appendectomy. The report found “acutely inflamed fibroadipose tissue” but “no appendiceal architecture within the resection.” The report was filed in Mrs. Green’s office chart but was not signed, initialed, or dated by Dr. Blue. During the third office visit, Dr. Blue discussed the findings from the pathology report with Mrs. Green and recommended returning her to surgery. Mrs. Green, feeling better by this time and recovering well from the appendectomy, was reluctant to undergo a second operation. She advised Dr. Blue that she preferred to wait and let a little more time pass, but she agreed to revisit his recommendation at her next appointment. Dr. Blue, through the scribe he used to assist with his medical record preparation, documented in the visit note that Mrs. Green was “advised to go back in with laparotomy and check to see if anything is wrong, but patient requested not to do anything until the next office visit.”
Dr. Blue raised the issue again with Mrs. Green during an appointment in March. By this time, her complaints were very mild and almost fully resolved. Mrs. Green also had a spring vacation planned for the following month that she was looking forward to taking. Mrs. Green again declined Dr. Blue’s recommendation to further investigate the pathology findings, advising that she was feeling better and did not want to have a second surgery. Mrs. Green agreed that she would let Dr. Blue know if her problems returned. Dr. Blue’s scribe documented this conversation in the office record as follows: “Dr. Blue will order CT or laparoscope if patient still has trouble with pain and fever. Patient said she is feeling better today but will keep us informed if she has any more problems.”
Eventually, Mrs. Green’s abdominal complaints resolved. She returned to her normal rhythm of life and did not return to Dr. Blue. That is, until October 7, 2016, when Mrs. Green again developed acute abdominal pain and again returned to the Emergency Department, this time at a different local hospital. There, after examination and imaging, Mrs. Green was again diagnosed with appendicitis. Mrs. Green was dumbfounded by this diagnosis, advising the emergency physician that Dr. Blue removed her appendix two years and eight months ago. Regardless, Mrs. Green was taken back to surgery and was found to have a perforated appendix. Given the extent and impact of the infection, her recovery from the second appendectomy was complicated and prolonged, but, after some time, Mrs. Green fully recovered to her normal state of health.
Mrs. Green filed a lawsuit against Dr. Blue, alleging that he failed to remove her appendix during the first appendectomy. The lawsuit also pled fraudulent concealment and alleged that Dr. Blue failed to inform Mrs. Green that her appendix had not, in fact, been removed. Mrs. Green claimed that Dr. Blue never discussed the pathology report with her, testifying as such at her deposition. Conversely, Dr. Blue testified in his deposition that he did discuss the pathology findings with Mrs. Green, not once but twice, and that he documented these conversations in the medical record. Dr. Blue explained that his discussion with Mrs. Green about the pathology results is implied by his documentation, arguing that it only makes sense that he would have explained why he was recommending a second surgery in conjunction with his recommendation for more surgery.
Discovery was conducted in the case, and expert witnesses were disclosed by both Mrs. Green and Dr. Blue. The case was being prepared for trial when the parties agreed to participate in a voluntary mediation. After negotiations, the parties reached an agreement to settle the case. While he maintained that he did discuss the pathology report with Mrs. Green, Dr. Blue realized that this was a key issue in the lawsuit, and his supporting documentation on this point was not strong. It can be difficult and somewhat of a gamble to predict how a jury will ultimately decide a “he said-she said” issue. Dr. Blue also recognized that, even though he had standard of care support from expert witnesses, it was going to be a challenge for him to explain to a jury how he performed an appendectomy on Mrs. Green but did not end up removing her appendix. For these reasons, Dr. Blue felt more comfortable resolving the case through a settlement than a trial.
This closed claim demonstrates several important points about documentation:
Most likely, this lawsuit would not have been filed had Dr. Blue’s chart contained clear documentation (1) that he informed Mrs. Green about the pathology results; (2) that he recommended a second surgery in response to the pathology findings; and (3) that, fully informed of this, Mrs. Green decided not to follow Dr. Blue’s recommendation to have a second surgery. This closed claim gives a strong illustration of how medical record documentation can end up at the center of a lawsuit. Moreover, this closed claim demonstrates how damaging absent or weak documentation can be to a doctor’s ability to defend their care.
So, how does one end up having an appendectomy twice? For Mrs. Green, her appendix was in a retrocecal position, so it was not able to be visualized until her colon was lifted. Additionally, her abdomen was significantly inflamed at the time of her first appendectomy. Finally, Mrs. Green was morbidly obese. These three factors complicated the surgical picture for Dr. Blue, making it difficult for him to accurately determine the location of her appendix. Fortunately for Mrs. Green, she is now definitely appendix-free.
 Definition & Facts for Appendicitis,”https://www.niddk.nih.gov/health-information/digestive-diseases/appendicitis/definition-facts
Kathleen W. Smith is a Senior Claims Attorney in the Claims Department of SVMIC. Ms. Smith is a licensed Tennessee attorney admitted to practice law in all Tennessee state courts and before the United States District Court for the Middle District of Tennessee. She is a member of both the Tennessee Bar Association and the Nashville Bar Association. Ms. Smith manages litigated and presuit claims brought against SVMIC policyholders in all jurisdictions where SVMIC insures medical providers. She also advises SVMIC policyholders with the varied legal, regulatory and risk management issues arising during the day-to-day provision of healthcare. Prior to joining SVMIC, Ms. Smith practiced law with a defense litigation firm, defending SVMIC policyholders in medical malpractice lawsuits.
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