Medical Brief (or Medical Memorandum)

CHAPTER 4 Medical Brief (or Medical Memorandum)



S. Sandy Sanbar, M.D., Ph.D., J.D., F.C.L.M. , Marvin H. Firestone, M.D., J.D., F.C.L.M.




GOLDEN RULES



1. The medical brief can be an extraordinary tool when preparing a medical negligence case.

2. A medical brief, or medical memorandum, should be prepared in complex malpractice lawsuits.

3. The medical brief should be meticulous, comprehensive, and inclusive of all the medical and nursing care rendered to the patient.

4. The medical brief can be extremely helpful to both the defendant physician and the defense counsel.

5. The objective evidence in the medical brief may prove absence of medical negligence, thereby bringing peace of mind to the physician.

6. On the other hand, if the evidence indicates that there may be negligence, the medical brief will serve to focus attention on the issues at hand and may promote settlement.

The medical brief, also called the medical memorandum, is a comprehensive compilation of legally relevant medical facts of the case in litigation, with supportive data and conclusions from the medical literature, textbooks, and treatises, as well as opinions of medical experts. The medical brief is the attorney’s work product. It is therefore not subject to discovery by the opposing side during the pretrial process or during the trial proceedings. However, it may be submitted to the judge, as a part of a pretrial brief or court memorandum, in order to inform the judge about the medical issues of the case that are being litigated.


The medical brief is distinct from the medical report. The medical brief is usually prepared, at the request of the attorney, by a medical individual (e.g., a physician or nurse) and is generally kept confidential from opposing parties.


The medical report, on the other hand, is prepared either by a physician who attended the patient and who has personal knowledge of the medical facts, or by an expert medical witness whose source of information is review of pertinent medical records. Medical reports that are written by an expert witness who intends to testify in court are generally discoverable. The attorney who is in possession of the written medical reports may be required to show those reports to the other side either before or during the trial. In contrast, medical reports of expert witnesses who do not intend to testify in court may not be discoverable.


The requirement for a comprehensive medical brief by most practicing attorneys is infrequent; it is demanding in time, effort, and expense. Therefore, a medical brief is warranted only in special cases where the medical facts are very complicated and where the alleged damages are substantial. In contrast, medical reports are relatively brief, less time- consuming, and are similar to comprehensive discharge summaries. Most physicians are well familiar with the preparation of medical reports.


The following are two sample medical briefs of actual cases, but the names have been altered. The medical evidence is presented, and it may be followed by brief comments, supported by peer-reviewed medical literature. The medical literature that supports the facts of the case is not included in this chapter. Physicians are very familiar with searching the medical literature for any medical disorder. Some attorneys prefer not to have the medical literature listed in the medical brief. The medical literature is readily accessible on the internet for both the plaintiff and defense counsel.



I. MEDICAL BRIEF: FIRST SAMPLE


Mr. John Senior, who was then 80 years old, was involved in a motor vehicular accident (MVA), which will be described shortly. (This represents an actual case; the names are fictitious.)



Medical History Prior to MVA


Prior to the MVA, John had the following diagnoses:


1. Coronary arteriosclerosis, and secondary ischemic cardiomyopathy.

2. Status post-coronary angioplasty, with stent placement in the left anterior descending coronary artery.

3. Sick sinus syndrome.

4. Permanent, pervenous, dual-chamber pacemaker, implanted in 1998, for #3.

5. Aortic stenosis, moderate in severity.

6. Hypertensive cardiovascular disease.

7. Left ventricular hypertrophy.

8. Transient cerebral ischemic attack in 1996, due to carotid arteriosclerosis.

9. Status post-bilateral carotid endarterectomy, for #8.

10. Chronic renal insufficiency.


Last Exam by Family Physician Prior to MVA


The patient visited his family physician due to onset of sore throat and cough (no sputum). The patient had no chest pain. His weight was 195.4 lbs., B.P. 130/82 mm Hg, and temperature 98.6°F. No laboratory tests were performed. The family physician diagnosed an upper respiratory infection, and he prescribed an antibiotic and a cough medication.



MVA and EMS Care at Scene of Accident


About three hours after visiting his family physician, the patient was a front-seat passenger in a car driven by his wife, when the car was struck by another car on its front end. The airbag deployed. The patient remained in his seat trapped by the deployed airbag until the arrival of the EMS. He was promptly removed from his seat, evaluated, and attended to appropriately. He had lacerations of the nose, and a reddened area across the chest. He complained of chest pain under the left breast and into the sternum. The chest pain did not radiate to the jaw or arms. He had wheezing on inspiration, but his respirations were nonlabored. His B.P. was 160–170/84, pulse 68–71, and respirations 20. His EKG rhythm strip revealed pacemaker rhythm, with premature ventricular contractions every third heart beat (trigeminy). He was treated with oxygen at 3 L/min per nasal canula, and an IV was started with normal saline solution. The diagnosis was MVA with left chest pain.



Hospital Emergency Department


The patient was transported via ambulance to the Emergency Department of a Medical Center. Upon arrival, the severity of the left chest pain was 5, on a scale of 1 to 10. The emergency physician noted that the patient had facial abrasions and wheezing bilaterally. The hematology was normal; the white blood count was 6900, Hgb 14.1 g, and hematocrit 40.9%. The BUN was 27 mg/dl, creatinine 1.5 mg/dl, and glucose 148 mg/dl. The EKG revealed a pacemaker rhythm with ventricular capture, rate 72 bpm. The chest x-ray report by the first radiologist (#1) stated: “A vague interstitial prominence is present in the left perihilar region suspicious for early pneumonia. The right lung is clear and the heart is enlarged.” The impression by the radiologist was: “Probable early left-sided pneumonia.” The impressions by the ER physician were: left chest contusion, left pneumonia, and bronchospasm.



Hospitalization


The patient was hospitalized at a City Medical Center. The attending was his family physician; he had seen the patient earlier that day at his office prior to the MVA. On admission, the pain in the left side of the chest was described as 6 on a scale of 1 to 10. The patient had shortness of breath, congestion, and dry cough. He had bruises over the left chest and face, secondary to the MVA. At 23:30, the nurse, R.N., noted that the patient’s skin was flushed, with bruises over the face and the left chest, secondary to the MVA, and his respirations were labored, on 3 L/min oxygen. His weight was 194 lbs., temperature 98.6°F, pulse 63, respirations 22, and B.P. 168/77 mm Hg. The electrocardiogram monitor revealed pacemaker rhythm, rate 71, and premature ventricular contractions. At 18:40 hours, the heart rate dropped to 55 beats per minute; the pacemaker did not sense the bradycardia (emphasis added). At 19:40 hours, the heart rate was 63 beats per minute. At 20:25 hours, the pacemaker rate was 71 beats per minute. Hematology showed a white blood count of 9200. The BUN was 24, creatinine 1.4, and glucose 127. At 12:30 hours, the total CPK was 219, MB fraction <5.0, and the troponin-I was 0.8 ng/ml, indicating possible minimal or early myocardial injury. At 18:40 hours, the total CPK was 200, the CK-MB was <5.0, and the troponin-I was 0.5.



Transfer to Intensive Care Unit


The attending physician saw the patient for the first time at the hospital, examined him, and stated that the patient had chest pain and shortness of breath, following the MVA, and he suspected secondary congestive heart failure. That same day, the patient developed respiratory distress at 7:45 a.m. Three nurses assessed the patient and noted that the patient desaturated and became cyanotic despite the oxygen per nasal canula. The pulse oxymetry dropped to 82%. The patient complained of chest pain. A non-rebreathing mask was placed by the respiratory therapist, and more oxygen was administered. Morphine, 2 mg, and Lasix, 40 mg, were administered intravenously at 7:50 a.m. The patient was transferred from his regular hospital bed to the intensive care unit at 9 a.m. His son was at his bedside, and the attending physician was notified about the patient’s transfer at 9:15 a.m. At 11:52 hours, an AP portable chest x-ray was obtained and interpreted by a second radiologist (#2) as follows: “This is a poor inspiratory effort, which accentuates the heart size and the vascular pattern of the lungs. There does not appear to have been significant change from the previous study.”



Cardiology Consultant and Echocardiogram


A cardiologist was consulted and examined the patient. His impression and recommendations were: “Patient presents with probable pneumonia on the left side and now also has decompensated congestive heart failure in the setting of noncardiac disease and aortic stenosis. The patient is on appropriate antibiotic therapy and will start him on intravenous diuretics for control of his blood pressure. Will check Echocardiogram to assess his cardiac status and will follow with you.”


The echocardiogram was performed. The impression on the echocardiogram request was acute pulmonary edema and valvular heart disease.


“INTERPRETATION:


1. Dilated left atrium. Other cardiac chamber sizes are normal.

2. Dense aortic sclerosis.

3. Dense mitral sclerosis.

4. Aortic stenosis with restricted cusp separation.

5. Concentric left ventricular hypertrophy.

6. Overall right ventricular and left ventricular systolic function is normal. There is inferior left ventricular hypokinesia.

7. Left ventricular ejection fraction is 55%.

8. No pleural or pericardial effusion noted.

9. Mild TR. Mild MR.

10. Critical aortic stenosis. Mean pressure gradient 28, peak pressure gradient 46. Calculated aortic valve area is 0.7 cm2.”


Course in the Hospital


The patient’s temperature rose to 101.4°F on the second day of admission, pulse 62–64, respirations 22–26, and B.P. 146/70 mm Hg. On the third day of admission, the maximum temperature was 100.2°F and subsequently the temperature was mostly in the normal range. The WBC was 10,600, Hgb 12.8 g, hematocrit 36.5%, BUN 34 mg/dl, creatinine 1.7 mg/dl, total CPK 173–179 IU/L, and MB fraction <5.0 ng/ml. The troponin-I was 0.8 ng/ml at 02:50, and 0.6 ng/ml at 10:12 hours. The EKG revealed pacemaker rhythm with ventricular capture at a rate of 72 beats per minute. The chest x-ray was reported by the third radiologist (#3) as follows: “The dual lead right subclavian pacemaker is seen overlying the right ventricle. The heart size is enlarged. Pulmonary vascular congestion is seen along with some interstitial edema. Overall, I do not see any significant change from the previous day’s x-ray. IMPRESSION: 1. Findings most consistent with congestive failure.” A second portable AP upright chest x-ray was obtained at 18:10 hours. The radiologist’s (#3) report stated: “The heart size continues to be enlarged with pulmonary vascular congestion and edema. No pleural effusions are seen. There is a suspicion of a left anterolateral 5th rib fracture. IMPRESSION: 1. Congestive changes with suspicions of a left 5th rib fracture.”


During the hospital course, the EKG monitor revealed pacemaker rhythm, with variable rates from 60 to 75 beats per minute, and premature ventricular contractions. Atrial fibrillation was noted on the sixth day of hospitalization, at 15:43, with a ventricular heart rate of 83 bpm.


On the fourth day of hospitalization, the EKG revealed a pacemaker rhythm with ventricular capture at a rate of 59 bpm. The chest x-ray, interpreted by the radiologist (#2), showed significant clearing of the pulmonary vascular congestion. The heart remained enlarged. There was elevation of the right diaphragm with atelectasis in the right lower lobe. On the fifth day of hospitalization, the chest x-ray, interpreted by the radiologist (#3), showed the heart size enlarged, and there was a proven left lung infiltrate. On the sixth day of hospitalization, the chest x-ray, interpreted by the radiologist (#3), showed no significant change from the fifth day of hospitalization. The heart was enlarged, and there continued to be some left basilar infiltrate. The last chest x-ray (#4) revealed interval clearing of the left lower lung infiltrate, normal pulmonary vasculature, cardiomegaly, and stable position of the dual lead cardiac pacemaker.


During his hospitalization, the patient was treated with diuretics, ace inhibitors, digoxin, Hytrin, antibiotics, pain medications, and nitroglycerin. During his entire hospitalization, the patient received respiratory therapy 5–6 times daily, with Albuterol 2.5 mg and Atrovent 0.5 mg. The kidney function tests gradually became more abnormal. On the eleventh day of hospitalization, the BUN had risen to 52 and the creatinine was 1.9. On the thirteenth day of hospitalization, the discharge date, the BUN was at its highest level, 70, and the creatinine was 2.5. The patient was not complaining of chest pain. His vital signs were stable. The patient was discharged after two weeks to be followed as an outpatient.

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Mar 25, 2017 | Posted by in GENERAL & FAMILY MEDICINE | Comments Off on Medical Brief (or Medical Memorandum)

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