Letters to referring doctors may keep you out of court

Dr. Robert M. Fleisher discusses the importance of proper documentation

The following is an excerpt from
From Waiting Room to Courtroom: How Doctors can Avoid Being Sued.

Communication between doctors is an essential part of the healthcare process. It helps to ensure coordination and quality of treatment.¹ While most offices have generic, computer-generated letters to communicate with patients and other doctors involved in treatment, there are other ways to provide this communication, including handwritten notes and emails. Always be careful about your correspondence, making sure whatever you write is not going to be regrettable. Also note that patient medical information is protected by rigid HIPAA laws, and as such, any communication must be secured. HIPAA is an area of importance and is described in its own chapter.

Specialists are generally the ones who have to keep referring providers with up-to-date reports regarding their patients’ treatment. If all is routine, the generic, computer-generated letter works fine; however, for the more involved case that can’t be described by a generic note, the customized letter needs to be sent.

You must keep a record of all notes, letters, and emails that you send to anyone regarding your patients. Never jot down notes on your computer-generated letter without scanning or copying it into the patient chart. You don’t want to be surprised by some attorney placing into evidence a clinically relevant letter you wrote that you don’t have in your chart. Even if the content of the letter or note is irrelevant to the case, not having copies of letters you sent makes you look inept in the eyes of the jury.

If you find that your practice requires many customized letters, and you prefer to use handwritten notes for expediency versus the dictated letter, you may want to consider NCR (non-carbon-required) paper notes. This allows you to make a duplicate copy of the letter to keep in the patient chart. The alternative is to copy or scan all of your individualized handwritten notes into your records if you have a paper-
less office.

Routine letters

Most areas of practice have routine letters that are used often, and for these situations, you should have scripted, computer-generated letters that address the most common issues. The thank you for referring letter and the treatment completed letter are most common and easily incorporated into any practice. By utilizing “mail-merge,” these letters can appear to be customized with the name of the patient, the treatment provided, as well as being automatically addressed for mailing. A good software program does this for you.

Because these letters are essentially all the same, you don’t have to save a hard copy or a computer copy on file. However, you do need to have some way of indicating in the chart that each letter was sent. It can be a check-off box with a date or a full sentence indicating that the letter was sent: “Thank You Letter sent 4-12-15.”

Defensive letters

Letters to patients and referring doctors can be used to protect yourself by establishing your defense before any lawsuit is instituted. Because these are not routine letters, copies of all custom, case-specific letters should be placed into the chart either by hardcopy or scanned copy.

Failure to diagnose protection letter

One of the most important ways to protect yourself from failure to diagnose lawsuits includes letters to referring providers that indicate you noticed problems such as pathology or conditions they may have missed. This letter protects you by pointing it out to the other provider; i.e., you fulfilled your obligation to notify the referring provider. And, of course, you noted the problem in the patient chart.

You also have an obligation to notify the patient, and that should be resolved by explaining the issue to the patient and making an entry into the chart stating that you had a conversation about the issue. A discrete way to manage that conversation is addressed in The Patient Chart chapter – Duty to Notify.

AMA — Against Medical Advice letter

Letters can be used to notify patients about conditions that they neglect to address or remedy. This letter establishes a clear date for the statute of limitations along with patient chart entries indicating the patient was advised — the notation AP (advised patient) is used as a charting shortcut; e.g., AP untreated periodontal condition requires follow-up with dentist.

After years of neglecting to engage in a recommended treatment, patients may try to blame the doctor by stating he/she “never told me” about the condition. While every recommendation and refusal should be noted and dated in the patient chart, a follow-up letter adds to a strong defense, especially if it is sent registered, return receipt requested. Patients often claim they never receive warning letters just as they never receive your bills.

Most practitioners don’t use this level of caution because they believe the chart entries are sufficient. They probably are when properly documented. You decide how much caution and peace of mind you require.

Most attorneys will not take a case that is well documented with chart entries that describe patient advice and warnings and follow-up letters that corroborate the chart entries.

Untoward event letters

When complications of treatment occur or in cases where treatment fails, a letter outlining the occurrence should be sent to referring providers explaining the situation. This letter should never place blame on you unless it was your fault and you wish to make that pronouncement. To the contrary, it is best to use this letter to establish your defense by placing blame on causes that are not under your control. For example, if something is perforated, it was the result of the weakened, frail, inflamed tissue, the extreme curvatures of the canals or blood vessels, or blockages that caused the problem.

When instruments, files, fiber optics, or implants break, it is due to the calcified tissue, curvatures of the canals/blood vessels, or blockages, or whatever conditions may have caused the problem.

Infections that require prolonged care and hospitalization are described as virulent strains rather than iatrogenic in nature. In defending yourself, you must place the blame on the patient as he/she will most certainly try to place the blame on you.

These three examples show how a letter should and shouldn’t be constructed:

Dear John,

I completed the root canal therapy on your patient Jane Doe. A perforation occurred during the procedure that required a surgical intervention (apicoectomy). She is doing well….

Versus:

Dear John,

I completed the root canal therapy on your patient Jane Doe. I perforated at the level of the apical third. This required a surgical intervention (apicoectomy). She is doing well….

Versus:

Dear John,

I completed the root canal therapy on your patient Jane Doe. During the course of the treatment I found much calcification and curvature of the canals. There was a resultant perforation that required a surgical intervention (apicoectomy). She is doing well. …

In the first example, the letter is neutral, just mentioning the occurrence of a perforation with no blame assigned. This letter, while not incriminating, leaves the doctor open to attack where the blame will surely be placed on the endodontist if the patient decides to sue.

The second letter, not unreasonably, can be interpreted to state that the doctor was to blame — I perforated — and this admission will be used to win the case for the plaintiff.

The third letter clearly assigns blame on the anatomy of the root canal and the calcification of the pulp tissue that caused the perforation.

You should always attempt to establish the blame for untoward occurrences on uncontrolled consequences. This should be unmistakably stated in the patient chart as well as in any letters to anyone involved in the case. If you don’t establish blame, the plaintiff’s lawyer will.

If there is a bleeding complication, it wasn’t because you severed the artery intentionally; it was due to the high degree of inflammation or the anatomic anomaly placing the vessel in this most unusual position.

When a patient has an allergic reaction to a medication, it isn’t caused by your prescribing the medication. It is due to the patient’s immune system’s allergy to the medication.

Besides using these techniques in letters, they can also be used in verbal explanations you have to make to patients when things go wrong. This is not complicated. You must think about why something happened and then explain it in terms that relieve you of blame. This information is not intended to have you consider fabricating your side of the story. It is merely making you aware that whenever the blame for untoward events is not related to your iarogentics; make sure you describe it in the appropriate manner.