• Cardiology Clearances and Informed Consent: Supporting Your Defense through Documentation
  • March 6, 2017 | Authors: Peter T. Crean; Emma B. Glazer
  • Law Firm: Martin Clearwater & Bell LLP - New York Office
  • Cardiologists are often consulted to render preoperative clearance to ensure the proposed surgery is safe in light of a given patient’s comorbidities. Like any evaluation, it is essential that the cardiologist carefully document the substance of the encounter.

    When a patient who is cleared for surgery sustains an intra- or postoperative cardiac-related complication, it is the comprehensiveness of the cardiologist’s evaluation as demonstrated by his or her documentation that will be scrutinized by the attorney for a prospective plaintiff to determine if a lawsuit will be brought.

    For example, a surgeon whose patient has multiple comorbidities, including diabetes, hypertension, coronary artery disease and congestive heart failure, requested that clearance be obtained from multiple physicians, including a cardiologist, prior to performing an elective spinal surgery. The cardiologist documented a total of 40 minutes spent in consultation with the patient and her husband, including the time necessary to perform a nuclear stress test and an echocardiogram. Physicians documented the following: “[The patient is] high risk due to numerous comorbidities. Patient can die during surgery and more likely to have complications. Should not undergo any elective procedures.”

    After the patient went into cardiac arrest during surgery, the family sued the neurosurgeon, cardiologist and the hospital where the surgery was performed for alleged medical negligence and lack of informed consent. The cardiologist’s preoperative documentation was important evidence submitted in defense of these allegations. Further, the note was effectively utilized to elicit deposition testimony from the surviving spouse that he was present for the office visit with the defendant cardiologist, during which time the patient was advised of the dangers of elective surgery. His testimony also confirmed that the patient was unwilling to heed to her physician’s very clear warning and elected to undergo the surgery knowing the grave risks. Although the patient did sustain complications she was cautioned against, she did so with the full knowledge of the risks. Accordingly, the cardiologist was dismissed from the case prior to trial.

    By contrast, another consulting physician, who rendered cardiac clearance prior to bariatric surgery for a patient with prior medical history of stroke and blood clots for which she being treated with anticoagulants, documented her only as “new patient. PMHX CVA, DVT. Cleared.” The only warning the patient received was to stop anticoagulation five days prior to surgery due to the risk of bleeding, but the warning was undocumented. The patient sued after sustained total right-sided hemiparesis secondary to a hemorrhagic stroke three days postoperatively. Although the patient continued to take anticoagulants until only one day prior to surgery, contrary to the cardiologist’s purported instruction, the cardiologist was unable to produce documentation supporting his position that he gave an appropriate warning. At the deposition, the plaintiff’s attorney was able to use the short office note to create the appearance of a hasty and careless office evaluation. Without critical documentation to support his defense, the cardiologist was unable to convince the jury that he properly instructed the patient. The jury found for the patient, and the cardiologist was ordered to pay substantial sums for negligently clearing the patient for surgery and for sustained neurological damages.

    These examples highlight the importance of thorough documentation of preoperative instructions given to patients with increased risk. It is essential that cardiologists rendering preoperative clearance thoroughly document tests performed and the substance of their patient encounters. Detailed documentation in office records is powerful evidence and can persuade a jury to accept the defense’s position that the patient was warned but accepted the risk of surgery.

    Source: MD News February 2016, Long Island Edition