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Can doctors use hearsay to defend medical liability claims?

By Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  —  Posted Dec. 31, 2012.

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Physicians commonly receive personal information about patients from their relatives, caretakers and friends. The conversations can help diagnose a condition and determine the best treatment, medical and legal experts say.

But to what extent can doctors use information provided by third parties to defend against medical liability claims?

The Colorado Supreme Court will soon weigh this question in a case that legal experts say could have nationwide implications for doctors who are sued. The state high court will review whether an appeals panel correctly threw out statements made by a patient’s former girlfriend that suggested the patient’s outcome was linked to drug abuse.

If the appeals decision stands, the ruling would limit what evidence doctors can present during medical liability lawsuits, said Susan Koontz, general counsel for the Colorado Medical Society. The society, along with the Litigation Center of the American Medical Association and the State Medical Societies, co-wrote a friend-of-the-court brief in support of the doctors in the case.

“Physicians have ongoing dialogues with patient families, and that evidence, while hearsay, is significant to physicians making a determination about the patient’s diagnosis or causation of a patient’s condition,” Koontz said. Restricting such information from liability trials “would be detrimental to physicians defending themselves.”

In Haralampopoulos v. Kelly, Colorado patient Vasilios Haralampopoulos visited the Medical Center of Aurora emergency department in 2004 complaining of abdominal pain, according to court documents. Tests found he had a cyst on his liver, and physicians ordered a needle biopsy. Mauricio L. Waintrub, MD, the internist on call, took Haralampopoulos’ medical history and admitted him for the procedure but did not ascertain the cause of the cyst, according to court documents. Radiologist Jason L. Kelly, MD, performed the biopsy on Haralampopoulos the next day. Shortly after the cyst was pierced, Haralampopoulos experienced cardiac arrest. He did not immediately respond to resuscitation efforts, but eventually he was revived. The loss of oxygen led to a permanent brain injury and put him in a vegetative state, according to court records.

Ten days after the injury, Haralampopoulos’ former girlfriend, Lori Hurd, approached Dr. Kelly and asked whether the patient’s cocaine use may have affected the outcome. During trial, Dr. Kelly said Hurd told him Haralampopoulos had used cocaine before the biopsy to control his pain. Hurd testified she spoke only about cocaine use in Haralampopoulos’ distant past.

Haralampopoulos’ family sued Dr. Waintrub and Dr. Kelly for negligence. Had the cause of the cyst been determined before the biopsy, doctors would have recognized that spillage of its contents would have led to anaphylactic shock, the plaintiffs said. The doctors said they met the standard of care. Haralampopoulos’ cocaine use — as described by his former girlfriend — explained his sudden cardiac arrest and his delayed response to resuscitation efforts, they said.

A jury found in favor of the doctors, and the plaintiffs appealed. Hurd’s statements about the patient’s drug use was hearsay and should not have been admitted, the plaintiffs said. The doctors argued that the comments fell under an exception to Colorado hearsay rules that allow statements made for the purposes of diagnosis or treatment.

But an appeals panel disagreed, saying that given Haralampopoulos’ permanent brain injury, it was not reasonable to conclude that the information was necessary to diagnose or treat him.

“The information had no diagnostic value, but only might have been relevant as to who or what was responsible for his condition, and thus the evidence should have been excluded,” judges said.

The court noted that Dr. Kelly did not chart Hurd’s assertion or make any attempts to test Haralampopoulos for cocaine after speaking with Hurd. Had Dr. Kelly found the information relevant to the plaintiff’s continued treatment, he should have relayed or made some use of it other than defensively at trial, the court said.

David Yun, Dr. Waintrub’s attorney, said drug testing would not have been effective, because too much time had lapsed at that point between Haralampopoulos’ injury and the alleged drug abuse.

Hearsay exceptions commonplace

Colorado’s hearsay exceptions are not unique. All states, as well as the federal rules of evidence, have hearsay exceptions pertaining to statements made for purposes of medical diagnosis and treatment, said John Conklin, outside counsel for the Colorado Medical Society.

“The exception has been around for a very long time, and it has always been interpreted broadly [by courts] when it comes to statements made for the purpose of diagnosis or treatment,” Conklin said.

At this article’s deadline, attorneys for the plaintiffs and Dr. Kelly had not returned messages seeking comment.

The statements about the patient’s drug use clearly met the diagnosis hearsay exception, Yun said. The comments were made to help Dr. Kelly pinpoint the previously unknown cause of Haralampopoulos’ cardiac arrest and resistance to resuscitation, he said.

“Discovering such a cause, even if not intended to aid in future treatment, falls well within the meaning of diagnosis,” said the doctors in legal briefs.

Physicians across the country include third-party information in medical charts and consider such information when making medical decisions, said Michael J. Sacopulos, chief executive officer for the Medical Risk Institute in Terre Haute, Ind. The institute counsels health professionals on understanding and reducing litigation risks.

If such information “is credible enough for physicians to make life-and-death decisions, surely it’s credible enough to have juries listen to it,” he said. “The reality is physicians need to have input from third parties when people are really sick. Sometimes [patients] are not the best historians of their past, and we look to other people to fill in those gaps.”

Physicians are entrusted with using appropriate judgment in considering information from others in attending to patients, and they should not be precluded from submitting that very same information when called to account for their care, the Litigation Center brief said.

“Medical care would be less effective and could be misguided without such information,” the brief said. “An after-the-fact evaluation of that same care would be just as misguided and inaccurate were such information not included in the critique.”

Physicians should verify third-party information

Other jurisdictions probably will use the Haralampopoulos ruling to support or rebut the admissibility of similar hearsay evidence, Sacopulos said.

This ruling “could very well be used in other courts around the country,” he said. “It really seems unfair to physicians to say some of the patient’s medical information can be used in a lawsuit against me, but other parts of the medical history [are] going to be excluded, and I can’t use it to defend myself.”

In general, physicians who receive third-party patient information should do their best to verify the statements, said Frank B. O’Neil, senior vice president and chief communications officer for the national medical liability carrier ProAssurance Corp. This could mean conferring with patients about what was said, performing addition tests, or reviewing information such as criminal records to confirm any accusations. He said documentation also is key.

Document the third-party statement, “especially if you think it’s credible and it would change the way you treat the patient,” he said. “If it is credible enough to consider and you do decide to act on it, it’s gotta be in the record.”

Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  — 

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