Michigan Court of Appeals Reminder for Providers: Write it Down in the Medical Record, September 22, 2015

September 22, 2015

By: Louis C. Szura

Attorneys are known for advising clients to "get it in writing." While only certain items have to be in writing to be enforceable, it is generally good advice in many situations because it is much easier to prove something happened if it is written down. And, when things get to court, what you can prove happened is the most important thing.

In addition, health care providers have other reasons for keeping extensive notes regarding treatment of their patients. One of those reasons was recently addressed in a case from the Michigan Court of Appeals. In the recent case of Bureau of Health Care Servs. v. Schwarcz, respondent Richard Michael Schwarcz, DDS, appealed the decision of the Board of Dentistry that placed him on probation for one year and fined him $3,000 for violating the Michigan Public Health Code. Ultimately, his failure to properly document the patient's file formed the basis to uphold that sanction.

According to the opinion, Dr. Schwarcz performed a root canal on a patient, but during the procedure, part of a file broke off and was left in the root of the patient’s tooth. Although such a broken file is typically not problematic, it eventually caused infections, pain and other complications for the patient. The patient claimed that she was not told about the broken file, while Dr. Schwarcz claims he informed her of the broken file. Moreover, the patient’s file contained a post-procedure x-ray showing the broken file at the point of the root canal.

Following the administrative proceedings, the magistrate concluded that Dr. Schwarcz’s root canal and subsequent treatment of the patient complied with the standards of care and that he properly informed the patient about the separated file. However, the Dentistry Disciplinary Subcommittee specifically rejected the finding that Dr. Schwarcz informed the patient about the separated file. It imposed sanctions on Dr. Schwarcz.

On September 8, 2015, the Court of Appeals upheld the Disciplinary Subcommittee’s determination. The Court of Appeals found that the existence of an x-ray showing the broken file in the patient’s medical record, the failure of her family dentist to raise the issue and the testimony of Dr. Schwarcz were not sufficient to overturn the discipline decision. Moreover, the case upheld the determination that the dental standard of care required Dr. Schwarcz to make a notation in the patient’s chart about his conversation, rather than merely relying on the existence of an x-ray showing a broken file fragment.

This is yet another reminder for medical license holders in Michigan to be sure to document discussions with patients in the files. It may take some time, but not doing it can be costly.

Link to the COA decision:


-- Louis Szura focuses his practice on health care law and general business litigation. He can be reach at lszura@vezinalaw.com.

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