Claims suggest incidental findings are falling through the cracks - Obviousness of findings makes defense difficult
If a patient with suspected pneumonia receives a chest X-ray, the patient usually is contacted by the treating physician promptly about the findings. Even if not, the patient usually is interested enough in knowing the result to follow up on their own accord.
"However, a common scenario we see as medical malpractice lawyers is a patient who has a significant incidental finding on an imaging study, but is never informed of it and does not receive treatment for it on a timely basis," Russell X. Pollock, Esq., an attorney with Bergstresser & Pollock in Boston.
A chest X-ray might reveal a lung nodule suggestive of early stage lung cancer, for example. "It would be malpractice not to inform the patient of that incidental, yet significant finding," says Pollock.
Radiologists have a duty to make ensure that the patient is informed of a significant incidental finding, says Pollock. Other medical care providers, such as attending physicians or primary care physicians, might share this duty. "This is especially true when the condition is one that is within the province and knowledge of those other specialties," says Pollock. When a patient receives a CT scan, for example, the significance of a potential demyelinating process might not be evident to an emergency physician reviewing the report, but an incidental finding of a suspicious mass should be.
"Both of these findings require a discussion with the patient and follow up," says Pollock. "Both the radiologist and other physicians reviewing the report will be negligent if they fail to do so."
An uninformed patient, a treatable process, and significant damages all create the potential for a large verdict and strong settlement potential. "A dispute among the defendant physicians about who was responsible for informing the patient about the incidental finding is another factor that could enhance the verdict and mandate settlement," adds Pollock.
He recommends protocols clearly stating who is responsible for discussing the results with the patient. The protocol could include a sign-off portion in the record showing that the patient was informed of the finding, the manner of communication, and when it occurred.
While Pollock notes that such a protocol will not relieve the radiologist or other specialist from negligence from liability if the patient is not informed of a significant result from an imaging study, "it should reduce the number of times such failures occur."
Language "particularly damning"
Yates, McLamb & Weyher in Raleigh, NC, has seen several claims in which a patient was diagnosed with metastatic cancer some time after an incidental finding in a radiology study was made, says Ryan M. Shuirman, JD.
"In these claims, the finding often has little relationship to the reason the patient was seeking a radiology study," he says. "Thus, it is not necessarily something the patient's attending physician feels requires acute follow up."
The radiologist often will note the finding and recommend clinical correlation or future follow up study. "But the attending fails to discuss an incidental finding with the patient and/or arrange for future follow up, since the attending's focus is the patient's acute presenting problem," says Shuirman.
The obviousness of the finding to physicians who are not radiologists can make defending these claims more difficult. "Moreover, the language chosen by the radiologist in preparing a report from an imaging study can be particularly damning, if the radiologist specifically included recommendations for future follow-up studies," says Shuirman.
- Russell X. Pollock, Esq., Bergstresser & Pollock, Boston. Phone: (617) 682-9061. Fax: (617) 451-1070. Email: russ@
- Ryan M. Shuirman, JD, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6036. Fax: (919) 582-2536. E-mail: firstname.lastname@example.org.