Plaintiffs Prevailing in Incidental Findings Claims
An EP orders a chest X-ray for a patient with suspected bronchitis. The test returns negative, and the EP discharges the patient home. The next day, the radiologist’s overread notes a small pulmonary nodule. “A report is sent to the EP, but the EP is going off shift or is going out of town and, for whatever reason, doesn’t follow up,” says Joseph P. Wood, MD, JD, a Phoenix-based EP.
Months or even years later, the patient is diagnosed with advanced lung cancer that could have been caught earlier and sues the EP. “That patient can correctly make the allegation that it was right there on the X-ray,” Wood says.
According to the results of a 2011 study, one-third of CT scans showed at least one incidental finding, but patients were told about these less than 10% of the time.1 A recent malpractice claim involved a woman in her 50s who presented to an ED with nausea and abdominal pain. An ultrasound revealed gallstones. The radiologist report noted a cystic lesion on the patient’s kidney. The woman underwent a laparoscopic cholecystectomy but was never informed about the incidental finding. Two years later, her primary care physician detected the mass during a routine physical. Eventually, the woman died from metastatic disease.
“The case is a classic incidental finding scenario,” says Robert Hanscom, vice president of business analytics at Coverys, which included the case in a recent analysis of ED malpractice claims.2
There were many providers involved in the case: the interpreting radiologist, the physician assistant from the ED, the general surgeon, and the hospitalist. None followed up on the finding from the ultrasound obtained in the ED. The primary care physician never received records from the patient’s ED visit or surgery.
Scott T. Heller, Esq., has handled several cases of ED patients who were never informed of incidental findings after imaging was ordered to rule in or out a specific condition. The cases all share similar fact patterns. Typically, the radiologist interpreting the images can rule out the presence of a fracture or deep vein thrombosis. The radiologist or tech communicates that important finding to the EP or nurse promptly. Shortly afterward, the patient is discharged. Hours later, usually after change of shift in the ED, the radiologist’s final report is received. “But the patient and even the ER physician who ordered the imaging study are long gone,” Heller notes.
A physician assistant, ED technician, or ED nurse only performs a cursory review of the radiologist’s report. “Nobody in the ED has been told, nor do they notice, that within the findings described in the body of the radiologist’s report — though not necessarily in the ‘impression’ — there is an incidental finding,” says Heller, an attorney at Rosenberg, Jacobs, Heller & Fleming in Morris Plains, NJ. This may be a cyst, abnormal vascularity, or other abnormality that warrants further investigation.
“Nobody contacts the patient to inform them of a fortuitous incidental finding, which may have allowed diagnosis of an underlying condition at a time when treatment would be less invasive and have a better chance of success,” Heller explains, noting that the patient is diagnosed months or years later. “The treating physicians at the same facility — or counsel — obtain prior medical records and discover the incidental finding was a tumor or other abnormality at an early stage.” Heller adds that the patient sues the EP for failing to recognize the incidental finding and follow the radiology recommendation that imaging findings be “correlated with clinical findings.”
Many protocols require the radiologist to call the EP if he or she discovers an incidental finding that poses an immediate threat to life or limb if not treated emergently. However, such “critical finding” protocols do not require a call if the finding does not pose a danger of immediate harm. “Such policies often insulate and exculpate radiologists and their staff in these situations,” Heller notes.
EP defendants often insist that the radiologist should have at least mentioned it as a secondary diagnosis or suggested a follow-up imaging study to call attention to the potential significance of an abnormality that demonstrated no clinical symptoms. “A common approach is to blame the radiologist for failing to call the ER about the incidental finding,” Heller says.
EDs should address this question: “How do we prevent an important incidental finding from falling through the cracks in the communications between the ED and radiology?” One approach is to ensure that all imaging reports, consultations, and other pertinent information are emailed to the patient’s primary care physician. Even that may not prevent delay in diagnosis if the patient does not follow up.
“However, it represents one more opportunity to catch something that might otherwise be missed, thereby reducing the risk of harm to the patient and the risk of litigation for the ER,” Heller adds.
Part of the problem with incidental findings discovered in the ED setting, says Wood, “is that each person involved thinks their job is done.” The EP ordered the correct test. The radiologist informed the ordering EP of the result. The radiologist sent a corrected report to the EP. Yet no one ever acts on the results.
“EDs, hospitals, and physician practices need to figure out processes, systems, and ways by which all results that require follow-up by a provider are seen by everybody subsequently treating the patient,” Hanscom offers.
It is not enough for all involved providers to see the recommendation for follow-up. Evidence that somebody took the lead in communicating this to the patient is needed. Both the recommendation and the steps taken should be “front and center and highly visible to anybody who is subsequently seeing or treating the patient,” Hanscom advises. “Unfortunately, the opposite is more the norm.” Recommendations for follow-up are buried in multiparagraph reports. Often, these are not noticed by subsequent providers. “Whether steps are being taken ... by other providers is entirely out of the line of vision,” Hanscom says. Acknowledging the problem is an important first step. “We have to recognize that we are going to get corrected reports for tests that were ordered in the ED but were not completed while the patient was in the ED that come back a day later,” Wood says.
Administrators could designate a person, such as a nurse practitioner, to review corrected reports daily. That person could review the ED chart to determine whether something needs a follow-up and contact the patient and/or primary care physician.
“If we continue to rely on email, we’re just going to see the same errors over and over,” Wood says. There are many reasons why the need for follow-up is overlooked with this approach. In some EDs, physicians might be filling in temporarily and fail to respond to the email notification about the results.
“You need a person with medical training to go through all of the X-ray reports that come back to the ED,” Wood recommends. ED providers often get a false sense of assurance because they believe there is an appropriate system in place. In most EDs, the radiologist sends an electronic report to the EP, and the EP reviews it and decides if follow-up is needed.
“That is the current system, and it’s just not working,” Wood laments. “It doesn’t account for human error.”
Incidental findings can become buried in the ED chart. They may not be communicated properly to the primary care physician when the records are sent. “In some more extreme cases, the report may never even reach the primary care physician at all,” Hanscom notes.
In such a situation, neither the patient nor the primary care physician is made aware of the incidental finding. “The ED provider, who is no longer responsible for the patient, does not follow up to make sure the proper steps have been taken,” Hanscom adds.
Later, if the patient presents symptoms of a more serious condition like lung cancer, Hanscom says, “there is a real potential that [the patient] will file suit for missed diagnosis.” In these cases, when the ED physician is named along with the primary care physician, the allegation against the ED doctor typically is failure to communicate test results.
“Technology should be in place to put less burden on providers to communicate incidental findings,” Hanscom says. For instance, some electronic medical records immediately alert the patient’s primary care physician of an incidental finding.
“These systems have the potential to ensure diagnoses are not missed and that the most important documented findings are instantly top of mind,” Hanscom says. Especially important documentation for the ED defense: The EP made every possible effort to communicate his or her incidental findings to the primary care physician. If this is documented clearly, Hanscom says, “the emergency physician is much more protected from liability.”
REFERENCES
- Thompson RJ, Wojcik SM, Grant WD, Ko PY. Incidental findings on CT scans in the emergency department. Emerg Med Int 2011;2011:624847.
- Hanscom R, Small M, Lambrecht A. Diagnostic accuracy: Room for improvement. Available online at: https://bit.ly/2qlmVtz.
Experts recommend EDs should address how to prevent an important incidental finding from falling through the cracks in the communications between the ED and radiology. One approach is to ensure that all imaging reports, consultations, and other pertinent information are emailed to the patient’s primary care physician. This could serve as an opportunity to catch something that might otherwise be missed, thereby reducing the risk of harm to the patient and the risk of litigation.
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