A forgotten elevation in the BUN/creatinine level haunts a retired urologist. But after months of litigation, he gets a lucky break.
Dr. F, age 64, was ready for retirement after a lifetime in urology, and couldn't wait to get his fly-fishing rod out of the closet. Although he had taken fishing vacations every year, he was looking forward to fishing new streams in remote locations and honing his “sideswiper” technique to avoid overhanging bushes. Before he left, he told his group to “lose his number” and “find another mule” to carry the load. His colleagues laughed, not thinking he would soon be back in the office defending a malpractice case.
The patient was a 42-year-old woman who had undergone cystoscopy six years earlier for bladder cramps and discomfort without infection. She had been referred by her family physician to Dr. F, who had ordered some pre-op labs. He was surprised when the BUN/creatinine came back at 15/1.3 mg/dL, but he felt that the marginal elevation would not affect the anesthesia or procedure. Sure enough, the cystoscopy went smoothly, and Dr. F encountered only normal bladder mucosa, not the ulceration he was expecting. He referred the patient back to her family physician for further investigation and symptomatic treatment, but forgot the abnormal renal tests. This oversight was to have grave consequences.
Chronic renal failure
Two years later, during a pregnancy, the patient was found to have moderate chronic renal failure, probably from chronic glomerulonephritis. She underwent creatinine clearance testing over a 24-hour period, which revealed a glomerular filtration rate of only 30 mL/min, about 20% of normal for her weight and height. Her kidney failure progressed. She later went on dialysis, and two years later had a kidney transplant. Over the next few years, she ran out of money and found it impossible to pay her medical bills. She consulted a plaintiff lawyer because she felt her situation would have been avoidable with good medical care. The lawyer called for her extensive medical charts, and had them reviewed by an expert for negligence at any point along the continuum of her care.
The expert determined that the family physician should have diagnosed her renal failure earlier, and the plaintiff lawyer promptly filed suit against him. During the discovery period, the lawyer called for Dr. F's chart, finding the abnormal lab values. Soon after, Dr. F. was included as
a defendant.
Tail coverage insurance
When Dr. F reluctantly returned to his old office, he found two things in his favor. His partners had taken the precaution of buying “tail coverage” for him in his retirement, which provided him with insurance and the services of a defense lawyer. Second, his defense lawyer advised him that the case against him had been filed after both the statute of limitations and the “statute of repose” had run out. The latter is a stricter version of the former, allowing almost no exceptions. Sure enough, at a hearing a few weeks later, the judge dismissed the case. But just as predictably, the plaintiff lawyer filed an appeal.The case reached the appeals court three months later. Three judges listened to the arguments from both sides, read through the briefs, and asked questions. The process lasted just 20 minutes. Three weeks later, the defense lawyer called Dr. F, informing him that the appeals court had upheld the dismissal on grounds of “expired statute of repose.”
Legal background
Lawsuits have several time limits associated with their filing. Although every legal system has statutes that regulate and define such time limits, they are particularly important in this country because of the large amounts of money involved in civil litigation.
In this case, the legislature had passed a three-year statute of limitations, which the state courts had modified by introducing two legal doctrines: the continuous-treatment doctrine and the discovery doctrine. The continuous-treatment doctrine asserts that the statute of limitations is “tolled” (i.e., stops running) while the patient is under continuous treatment for the condition concerned. The discovery doctrine holds that the statute of limitations is tolled and does not start to run until the patient has a reasonable opportunity to discover that she was the victim of malpractice.
The discovery doctrine also holds that a minor child need not discover negligence until the age of 18, and so the statute of limitations is tolled until the 18th birthday, resulting in a 21-year statute of limitations in the state where Dr. F practiced. In reaction to these extensions of liability, the legislature enacted a statute of repose, which places a limit on filings at six years in most negligence cases in Dr. F's state. It was this limit that resulted in the case's dismissal.
Protecting yourself
Retirement poses several problems, one of which is what to do with your medical records. Good records are often a physician's best defense, but making and storing them involves considerable cost. Recreated records never have the same authenticity as the originals, and so it is good risk-management to spend whatever is necessary to preserve originals.
When Dr. F retired, his records were stored by his previous partners, and so there was no loss of continuity of care or medical records. In many situations, when a physician retires, he assumes responsibility for record storage, and a records service is probably the most convenient (but not the cheapest) way to go.
“Tail” coverage is an issue for most retiring physicians. Dr. F's partners had, at the time for insurance renewal, been advised by their insurance agent that both Dr. F and the group were still at risk from lawsuits against Dr. F until the statute of repose had expired, a point reached six years after his last patient had been seen. On this cautionary advice, they had purchased “tail” coverage to provide insurance for claims filed after Dr. F had retired. The premium was significantly less than for the group's usual claims-made insurance, and declined each year for the six years. Since each state has different statutes of limitation and repose, the way you structure your retirement coverage will depend on your state's laws.