Conflicting Cardiac Clearance Letters Leave a Suit Indefensible

Facts of the Case

A 38-year-old male presented to a MLMIC-insured plastic surgeon toward the end of October for consultation regarding removal of excess skin following the loss of 260 pounds after gastric bypass surgery. Following the surgery, the patient had also developed a large incisional hernia and had a very large abdominal panniculus.

The patient was originally being seen by a noninsured plastic surgeon at another facility for the procedure. However, he was not cleared for surgery by their cardiologist, whose testing included an exercise thallium stress test that indicated potential trouble in the muscle distribution off the left anterior descending (LAD) artery system. The test also revealed that the patient had EKG changes consistent with a potential problem in the LAD arterial system. In addition, cardiac catheterization revealed a mildly decreased systolic function and significant single-vessel coronary artery disease in the right coronary artery.

Because he wanted the surgery completed as soon as possible, the patient proceeded to the MLMIC-insured plastic surgeon. This surgeon’s plan was to correct the hernia and perform an abdominal panniculectomy. After advising the surgeon that he had suffered a heart attack in 1998 and had undergone an angioplasty to stent a total obstruction of the right coronary artery, this surgeon also requested he obtain clearance from a cardiologist for this procedure.

When the patient saw the MLMIC-insured cardiologist on October 30, the patient failed to inform him that he had just recently gone through extensive preoperative testing at a non-insured hospital and was not cleared for surgery. Even though this cardiologist did not know these problematic results, he too determined that surgery should be delayed until the patient had a complete cardiac evaluation and ordered testing to investigate his cardiac status thoroughly. The cardiologist forwarded a “non-clearance” letter to the surgeon that day.

Subsequent cardiac testing revealed normal ventricular function and a limited inferoposterior myocardial infarction at rest that did not change with exercise. Following this testing, the cardiologist cleared the patient for surgery. On November 30, he forwarded a letter to the patient’s non-party primary care physician and sent a copy to the surgeon, clearing the patient from a cardiac standpoint to undergo the proposed procedure. The letter indicated that the patient was at “low relative risk” for a perioperative cardiac event. He recommended that the patient continue his atenolol but that aspirin should be discontinued prior to the procedure.

On January 3, the patient appeared at the MLMIC-insured hospital for preoperative testing. The following day, their same-day surgery department faxed a request for the clearance letter to the cardiologist. Initially, his office incorrectly sent the original October 30 “non-clearance” letter. Because this was clearly erroneous, the hospital sent the cardiologist a second request. The clearance letter of November 30 was then sent to the department, and it was deemed to be sufficient. Therefore, on January 9, the surgery was performed.

The surgery was uneventful perioperatively, as was the immediate postoperative period. However, at some point shortly thereafter, the patient suddenly went into ventricular tachycardia, allegedly after an argument with his mother. The staff was unable to resuscitate him despite immediate and aggressive efforts.

The Lawsuit

The patient’s family commenced a lawsuit against the MLMIC-insured cardiologist, the plastic surgeon and the hospital. The allegations set forth by the plaintiff’s expert against the insured cardiologist were failure to meet the standard of care by failing to perform a preoperative cardiac catheterization and failing to document his records regarding the patient’s aspirin therapy properly.

Expert Reviews

Initially, when experts reviewed the case, it was felt to be defensible for all three defendants. However, the cardiologist maintained that on January 4, he drafted another clearance letter, which he sent to both the patient’s primary care physician by mail and faxed to the hospital’s “Anesthesia Department.” In this letter, the cardiologist again recommended proceeding with the surgery from a cardiac standpoint and continuing the patient’s atenolol in the perioperative period. However, he changed his initial description of the patient to “moderate risk for a perioperative cardiac event.” He also changed his recommendation of stopping the aspirin perioperatively to continuing the aspirin regimen.

Both the hospital and the surgeon denied that they ever received this January 4 clearance letter. Further, the primary care physician testified that he did not receive this new letter until January 10, the day after the patient’s surgery and death.

The MLMIC experts who reviewed the care all concurred that the cardiologist had conducted a complete workup before issuing the original clearance letter of November 30. He performed two stress tests that confirmed that the patient did not need cardiac catheterization prior to the surgery. They determined that the basis for his clearance was appropriate. However, all these experts were very concerned about the alleged presence of two different clearance letters. They unanimously questioned whether the January 4 letter was sent to the surgeon and primary care provider prior to surgery. Because of the important discrepancies in the two letters with respect to the degree of surgical risk and continuation of aspirin, they were not convinced that this second letter was sent.

The experts felt that the cardiologist should not only have forwarded this alleged new letter directly to the surgeon but also called him to alert him to the changes. In addition, the cardiologist had no proof that he faxed the letter to the hospital’s anesthesia department or that they received it. Further, even if he did fax a letter, he inappropriately failed to direct it to a specific person. The cardiologist, however, continued to maintain that the January 4 letter was his “official clearance letter.” In contrast, the surgeon and hospital continued to deny both receipt of this letter as well as knowledge of the changes to the cardiologist’s November 30 recommendations. Negotiations were then initiated, and a six-figure settlement was obtained on behalf of the cardiologist only.

Analysis

This case clearly presented more legal issues than medical. One of the obvious problems in the case was the patient’s dishonesty with the plastic surgeon. Because the initial plastic surgeon did not clear him, he saw another facility for the surgery he very much wanted. He lied to the new physician that his surgeon was on vacation, and he wished to undergo the procedure as soon as possible. However, he failed to bring any prior medical records with him.

Unfortunately, neither the MLMIC-insured surgeon nor the cardiologist requested any records and failed to communicate with his primary care physician or the physicians who treated his acknowledged myocardial infarction. The primary care physician may well have had relevant information in the patient’s records regarding his prior non-clearance. A patient who is dishonest with a new physician because he wants to undergo a cosmetic procedure may “doctor shop” and/or refuse to provide the records of prior physicians. Had the surgeon requested prior records or at least called to speak to the primary care provider, he too may have declined to perform the surgery because of the information the patient intentionally withheld. Unfortunately, this patient’s dishonesty contributed to his demise.

Several of the allegations in the lawsuit were based upon the premise that the defendant cardiologist failed to meet the standard of care by not performing a cardiac catheterization preoperatively. One of the key elements that a plaintiff must prove in a medical malpractice lawsuit is that the defendant deviated from the standard of care and that this deviation caused the patient’s injury.

The MLMIC experts who reviewed this case unanimously agreed that the defendant cardiologist’s workup was reasonable and appropriate. They opined that the plaintiff did not require a cardiac catheterization before the surgery since the patient had safely undergone two prior procedures without injury. However, if the defendant had obtained a more detailed history, communicated with the plaintiff’s prior cardiologist and primary care provider, and reviewed their medical records, the plaintiff’s argument that the cardiologist deviated from the standard of care by not performing further testing would have been further weakened.

It also appeared that the defendant’s cardiologist failed to document his alleged preoperative advice to the patient that he should continue his aspirin regimen. If, in fact, the defendant did tell the patient to do so by telephone, he also failed to document the conversation. This was a problem for the MLMIC expert reviewers. Additionally, during two office visits with the patient, the cardiologist failed to document whether the patient actually had been taking aspirin. That documentation alone would have substantiated his position that he had told the patient to continue to take his aspirin and would have shown that the patient was non-compliant. Documentation of a patient’s noncompliance is crucial when there is an unanticipated, unfavorable outcome to a procedure.

The most damaging issue in this case was the apparent lack of veracity of the cardiologist. The sudden appearance of an additional and “real” clearance letter dated January 4 created havoc with the possibility of a joint defense by all three defendants. This alleged “final clearance letter” contained a distinct change in the assessment of the patient’s risk as well as whether the patient should continue taking aspirin pre-and postoperatively.

While the MLMIC experts questioned whether the aspirin issue was relevant, based on the patient’s autopsy results, key changes to his risk assessment still obligated the cardiologist to call the surgeon prior to the procedure. The surgeon adamantly denied receiving either a call or a copy of the letter from the cardiologist. Further, the fact that the letter was received by the primary care provider on January 10, with a copy allegedly sent to the surgeon, made the cardiologist appear to lack any credibility to all the MLMIC experts. Additionally, the alleged fax of this letter to the hospital’s “Anesthesia Department” was not addressed to a specific person, and the cardiologist had no proof that this letter was actually faxed. Therefore, this lack of credibility made an otherwise defensible case impossible to defend. Fabricating evidence after a patient has died or a lawyer has requested records often places other defendants in a position to “finger point.” This can seriously impact a defendant’s position. The presence of multiple “clearance letters” from the cardiologist clearly precluded a joint and united defense. When defendants “finger point” at each other, the only person who benefits is the plaintiff.

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This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.