SAN DIEGO - Reliably tracking and storing pathology slides is key to avoiding the possibility of major liability, Robert A. Cosgrove said at a melanoma conference sponsored by the Scripps Clinic.
To illustrate his point, Dr. Cosgrove presented the personal injury case of a woman with advanced melanoma. About 1 year after she presented to the physician-defendant for evaluation of a lesion on her toe, she required lymph node resection and amputation of the toe.
The plaintiff claimed that the physician had negligently lost biopsy results, resulting in a delay in proper treatment.
The defendant claimed that the plaintiff's lesion had disintegrated at the time it was originally removed and left nothing for further testing.
The jury awarded the plaintiff a settlement in excess of $8 million.
"I've had this come up in a number of cases," said Mr. Cosgrove, a health care attorney based in Encinitas, Calif. "The problem with losing or misplacing pathology slides [is that] it raises questions about whether that was done intentionally or not. Plus, it puts you in a difficult position of being able to prove or disprove what your diagnosis is or your interpretation of the slides."
Another case he discussed underscored the importance of solid chart documentation. The case was brought to trial by the heirs of a 36-year-old woman who died of melanoma while under the defendant dermatologist's care. The heirs contended that the defendant failed to diagnose the decedent's shoulder mole, which was cancerous, in a timely manner.
The defendant denied liability and contended that the decedent was comparatively negligent and failed to make her appointments for yearly full skin exams.
"It is imperative to have documentation in your charts - photo documentation, and in this situation, documentation of yearly examinations. … You can rely on custom and practice, but it's better evidence for the jury when you present the case at trial to have documentation in the chart to that effect," Mr. Cosgrove said.
The defendant also contended that the cancerous mole was not the same as the one that she complained about, and that the decedent would have survived at the time of diagnosis because the lesion was thin.
"Many of these cases are presented at time of trial 2 and 3 years downstream," Mr. Cosgrove noted. "So it comes down to chart documentation. Was it adequately documented in terms of the location of where the lesion was when you evaluated the patient?"
In this case the jury ruled in favor of the defense.
During a question and answer session, a meeting attendee asked Mr. Cosgrove how long physicians should keep medical records on file. "I would find out what the legal policy is in your state on this and follow it accordingly," he advised. "It's important to keep good records and to not do anything after the fact to change your records. By changing the record, by altering the records, by falsifying information, or by destroying records you expose yourself to tremendous personal liability."
Mr. Cosgrove said he had no relevant financial conflicts to disclose.