In December of 2012, a Baldwin County jury awarded the plaintiff one of the largest verdicts in Baldwin County history as a result of a patient’s death after she received a fatal medication dosage. According to the plaintiff’s case, on March 18, 2008, patient Sharron Juno was discharged from Thomas Hospital. At discharge, Ms. Juno’s treating physician had no knowledge that the discharge summary he dictated was outsourced by the hospital and ultimately transcribed in Mumbai, India and New Delhi, India. Problematically, the transcript included three critical errors, and the dosage of Levemir insulin was written incorrectly as 80 units rather than 8 units which had been prescribed.
Ms. Juno was subsequently given this high dosage of insulin based on the admission paperwork the hospital had sent to another facility. The medication caused an irreparable brain injury that resulted in cardiopulmonary arrest. Ms. Juno never regained consciousness and died on March 27, 2008. The $140 million verdict is especially unusual in a conservative area such as Baldwin County and because it was significantly more than that sought by plaintiff’s counsel in the proceeding.
In this unfortunate circumstance, the physician never had the opportunity to review the discharge summary before it was sent to an unrelated facility. However, a hospital employee mistakenly entered the incorrect dose from the transcription on a form that already contained the physician’s signature, and the false impression was created that the treating physician had expressly ordered the incorrect dosage. In a bad coincidence of events, a form with the correct information was being separately scanned and was not available for confirmation.
As background, Thomas Hospital had outsourced all of its transcription services to a company who in turn outsourced all transcription to the previously referenced Indian transcription services. Testimony during the trial indicated that transcriptionists in the United States earn on average $19.50 per hour while Indian transcriptionists make no more than $350 per month. Testimony also demonstrated that Thomas Hospital saved approximately two cents per line of text in making the change to outsourced transcription services. There is some community speculation that the medical staff at Thomas Hospital was generally unaware that its transcription was being completed by an Indian company. The plaintiff’s counsel also alleges that Thomas Hospital continued to use the outsourced company for at least a couple of years after this incident.
There is no question that the verdict will be appealed and will likely be reduced or overturned on appeal if there is not an out-of-court settlement. Furthermore, bad facts make bad law, so this case is not necessarily precedent-setting for all cases involving bad transcription. Invariably, mistakes during transcription occur even with the best and most highly compensated transcriptionists. No system can be completely error-free.
However, off-shore transcriptionists, if not properly trained on a particular hospital’s and/or physician’s abbreviations and systems, may have more difficulty with abbreviations and dictation. Cultural differences may add to the difficulty of interpreting what a physician intended. With the electronic transmission of recordings, there may not be the same opportunity for transcriptionist/physician interaction or for a particular transcriptionist to become more familiar with a particular physician’s habits or preferences.
It is also important to note that medical malpractice judgments and bad patient outcomes are not the only downsides of faulty transcription. With the increased utilization of electronic signatures and heightened requirements for physician signatures and certification for billing purposes, it is possible that bad transcription and automatic signatures can lead to billing and certification problems as well. Accurate documentation and physician approvals are frequent requirements for payment from both private and governmental payors. If a physician does not have the opportunity to review fully his or her transcriptions prior to their publications to third parties, errors can result in coding problems and payment denials and put the physician at risk for billing problems. Moreover, if the physician’s signature is added to transcriptions by mistake or with a simple keystroke, the physician will have great difficulty demonstrating that he or she did not intend to say what is in the transcription. In some cases, the physician could be personally liable for the billing or coding error.
Colin Luke is a partner with Bradley Arant Boult Cummings LLP where he advises clients with respect to a variety of healthcare matters, including acquisitions, joint ventures, hospital/physician relationships, provider and payor certification, facility licensure and certificates of need.