Closing Hammers at Paltry Documentation En Route to $3.5M Med Mal Win

Many legal experts credit Johnny Cochran’s well-known quote, “If it doesn't fit, you must acquit” as being instrumental in helping win an acquittal for O.J. Simpson. More recently, another well known quote, “If you didn’t document it, it didn’t happen,” mentioned in regard to a medical practice’s alleged “paltry documentation,” may have led to a $3.5 million wrongful death verdict in a Clayton County, Georgia State Court case. 

The case arose out of the death of Michael Banks, a 39-year-old man who underwent a cervical laminectomy performed by Dr. Shahram Rezaiamiri. The operation was successful, but on April 2, 2007, the morning following his discharge from the hospital, Banks was coughing heavily and sweating profusely. His wife, Pamela Banks, called Dr. Rezaiamiri’s office twice that day, around 9:00 a.m. and 4:00 p.m., speaking each time to the doctor’s medical assistant Tashara Hall. Later, about 5:30 p.m., Hall called Pamela Banks back, but Dr. Rezaiamiri himself never spoke to either Pamela or Michael Banks that day.

Michael Banks’s condition worsened and, during the night, Pamela Banks attempted to take her husband to the emergency room, but he collapsed in the garage and died. According to evidence presented at the trial, his death was due to severe pneumonia, which likely resulted due to a low white blood cell count and Banks’s inability to fight off common strep bacteria. Medical experts at trial testified that if Banks had received medical treatment and antibiotics by about 7:30 p.m. that evening, he would have survived.

Pamela Banks originally filed suit against Dr. Rezaiamiri and his practice, but later dismissed him as a defendant. Instead, the case proceeded to trial on a simple negligence theory. Plaintiff contended that Tashara Hall never called Dr. Rezaiamiri and, further, that Hall had misled Pamela by telling her that some coughing after this type of surgery was normal and not suggesting that she might take her husband to the emergency room or call 911 if she was concerned.

Both parties realized that the jury’s verdict would likely depend on the credibility of the two main witnesses, Pamela Banks and Tashara Hall, regarding the telephone conversations between them and the subsequent actions taken by Hall. Banks testified that she and her husband trusted Dr. Rezaiamiri, who had told them when her husband was discharged that he would probably feel worse before he felt better. However, if Hall had ever brought up the possibility of visiting the emergency room, she would have taken her husband, especially as his symptoms had worsened during the day and by 4:00 he was experiencing heavy coughing, fever, and chills. To support Banks’ contention that Hall never called Dr. Rezaiamiri that day, her attorneys introduced telephone records showing no calls from the doctor’s office number to the operating room at Piedmont Hospital, where the doctor was in surgery that morning or to his cell phone.

Tashara Hall’s version of the events differed markedly from that of Pamela Banks. She denied telling Banks that some coughing was to be expected after that type of surgery and stated that she had informed Banks to call 911 or go to the emergency room if she felt her husband’s situation was urgent. She also denied that Banks reported worsening symptoms during the day; instead, according to Hall, Banks said her husband’s condition was essentially the same.

Finally, Hall insisted that she had called the hospital in the morning. She said she called the hospital’s main number and was routed to the operating room, were she left a message for Dr. Rezaiamiri with a nurse. She suggested that the reason there was no record of the call was because she might have used one of the office’s back numbers instead of the main number. Dr. Rezaiamiri also testified in support of Hall that he “vaguely recalled” being told he had received a phone call while he was in surgery that morning.

To bolster Hall’s credibility, defense attorney Jonathan Peters referred to several notes Hall made that were introduced into evidence. Her note regarding the 9:00 call indicated that Pamela said her husband was continuously coughing and having difficulty swallowing. Peters continued, “We’ve just seen that your training was that you were to write down every symptom, every bit of information the patient gave you about the patient’s condition, is that correct?” After Hall agreed, he continued, “And if it was written, it was done, and if it you didn’t write it, you probably weren’t told that.” She added that she told Banks to call 911 if she felt her husband’s condition was an emergency.

Hall made no note of the 4:00 phone call because Banks said the same things as she did during the 9:00 call. She stated: “If Ms. Banks would have added additional information, I would have certainly documented it. …I told Ms. Banks, I said, ‘Remember, if you feel like it’s an emergency to dial 911.’”  She didn’t call Dr. Rezaiamari again because she thought he was still in surgery. However, she did send the doctor an e-mail at the end of the day documenting Banks’s call.

Although Peters attempted to use Hall’s training on documenting everything a patient informed her of during a phone call (“if you didn’t write it, you probably weren’t told that”) as confirmation of her version of events, the plaintiff’s attorneys were able to use that training instead to impeach and cast doubt upon her version of events. On several occasions during their questioning of Hall and the closing statement, attorneys Keith Lindsay and Rod Edmond paraphrased the familiar saying, “If you didn’t document it, it didn’t happen.”

In his cross-examination of Hall as part of plaintiff’s case, Lindsay had her recount her deposition testimony about documentation: “Basically, anything a patient called in or anything that goes on between the patient, it has to be documented or you didn’t do it… I learned it in school.” Hall then confirmed that Dr. Rezaiamiri gave her the same instructions.

However, Hall later testified that, although she was trained to write down whatever the patient said to her, “According to how we are trained and our office policy, I don’t write down what I inform the patient, I only write down what the patient informs me.” When Lindsay then asked if that contradicted her training, she again said she only wrote down what the patient informed her and not what action she took. So, for that reason, she did not write down the call she made to Dr. Rezaiamiri after her first conversation with Pamela Banks.

Lindsay returned to this line of questioning later, in regard to Pamela Banks’s second call, which Hall did not document at all. When Hall said that whatever she wrote down was what Pamela informed her, Lindsay replied, “Well, we know that’s not true because you didn’t write down anything about the 4:00 call, right?” He followed up by asking Hall whether, based on her training, “if you didn’t write it down, then you didn’t do it, correct?” Hall replied, “That’s what I put in my deposition sir, correct.”

In his closing statement, Rod, Edmond elaborated on Hall’s testimony. He spent much of the statement listing what he claimed were 15 separate untruths told by Hall during her testimony. Edmond called it “a flip on this notion of if it’s not written down, you didn’t do it.” First, he pointed out that Hall said she disagreed with the principle (in regard to documenting her actions), but he then read her deposition transcript. “Q: I understand that you were taught that, if something happens, you’re supposed to document it. Correct? A: Correct. Q: All right and you mentioned the term, ‘if you don’t document it, it didn’t happen.’ Correct? A: Yes.”

Later, Edmond returned to Hall’s statements, “You heard her testify ‘I only document what people tell me and not what I do with a patient.’ Now what kind of sense does that make? You’re working in a doctor’s office and all you’re going to do is put down what people tell you. You’re not going to put down what you do… but you know what, on a couple of these notes, she wrote down what she did. … She testified to you, trying to explain her paltry documentation that she just doesn’t write down what she does, insinuating that she did it; she just didn’t write it down… The notion that what you don’t put down is what you should have put down is preposterous.” He then finished his closing statement by showing the jury blown up copies of each one of Hall’s notes, none of which indicated she told Pamela Banks anything about calling 911 or going to the emergency room.

The jury apparently believed Pamela Banks’s version of the events rather than Tashara Hall’s. They returned a verdict of $3.5 million in the case.