Mat Siporin and Michael Pullano teamed up to secure a $500,000 medical malpractice settlement for a prostate cancer patient who was diagnosed 18 months later than he should have been, resulting in his cancer spreading beyond the prostate and reducing his life expectancy significantly.
The patient went to see his internist with complaints of urinary urgency, but the doctor never told him about a potentially alarming test result, and he knew nothing until his wife happened to see the same internist 18 months later and asked him about it. The internist seemed surprised that the man hadn’t been to see a urologist and acted as if he’d told him to do so. When told the patient hadn’t followed up, the internist callously said to the wife, “Don’t worry, old age will kill him before prostate cancer does.” This was shocking and startling to hear, to say the least.
But upon finally following up with a urologist, our client found out otherwise: it turned out he has an aggressive form of prostate cancer that was allowed to spread into his lymph nodes and more distantly in the meantime. This has resulted in him being forced to undergo more aggressive forms of treatment that have horrible side effects—and yet are still unlikely to cure him of this disease.
We were able to disprove the internist’s claim—that he had, in fact, notified the patient of his test result and suggested that he see a urologist—through some sleuthing, conducting what’s called an “audit trail” analysis of the patient’s electronic medical record. Faced with that discovered evidence, the doctor settled for the $500,000.
Federal law requires that hospitals or other providers have in place these electronic medical record audit trail systems so that any time a healthcare professional goes into a patient’s medical chart to add, change or delete something, a record of that change is preserved. The audit trail on our client’s medical record showed that the internist did not look at the alarming test result for two months, at which point the system essentially alerted him, “Hey, you haven’t finished this,” Michael Pullano said. “You need to do this.”
At that point, the doctor looked at the test result very briefly, then typed up a note directing the patient to see a urologist for an ultrasound and repeat testing. The audit trail confirmed, however, that this note was never sent directly to the patient. Our attorneys were able to show that 18 months later, the doctor realized that he failed to communicate this vital information to his patient and drafted a separate note claiming he had done so, and the patient failed to follow his recommendation.
The fact that it took the internist 60 days to generate the first of the two notes underscored his neglectfulness in informing the patient, in any case. In his deposition, the internist admitted this was a breach of the standard of care. And our medical experts were able to show that the 18-month delay in seeking care resulted in the microscopic spread of the disease and an irreversible loss of opportunity to stop its progression.
The spreadsheet of data that is produced through audit trails “is pages and pages long,” Pullano explained. “You’ve got to be extremely knowledgeable to be able to interpret it. We requested a full audit trail, and the doctor and hospital at first objected. Then they produced what they claimed was the full audit trail. Our consultant realized this was false. As a result, we repeated a request for the FULL audit trail. Even then, while they produced more data, it was not the full data set. It took three rounds. We showed they had been withholding information that showed their doctor wasn’t telling the truth.”
Part of the purpose of the federal government requiring audit trails was to be able to hold healthcare systems accountable when they overbill Medicare,” Pullano said. “But part of the reason also was that doctors in med mal cases were destroying evidence, rampantly. Another big impetus of the act was to hold them accountable, specifically in medical malpractice contexts.”
“If not for the audit trail, it becomes a he-said, he-said case,” Siporin noted. “Instinctually, juries believe doctors because they’re there to help people. Overwhelmingly, they are. Doctors do great work. But there are instances of bad actors, and audit trails are the way some of the bad actors get caught.”
