Did MD fail to act on test results? Successful suits are occurring!
Too many assumptions, too little communication'
Dr. A, an internal medicine physician, refers her patient with ongoing gastrointestinal distress symptoms to Dr. B, a gastroenterologist on staff at the same institution. Dr. B suspects possible colitis and orders a colonoscopy.
The colonoscopy is performed by Dr. C, whose operative note and positive findings are available in the medical record, to which Drs. A and B have access. However, no separate email or other alert is sent to Dr. A or Dr. B.
"Neither check the medical record for the test result. As a direct consequence, the patient's condition goes untreated for several months," says Amy E. Goganian, JD, an attorney with Goganian & Associates in Needham, MA.
Shortly thereafter, the patient files a claim against Drs. A, B, and C for failing to follow up on her positive test results. This scenario is a typical one of many recent malpractice claims handled by Goganian's firm.
Molly Farrell, vice president of operations for MGIS Underwriting Managers in Salt Lake City, UT, says, "Lack of follow-up on testing occurs much more often than it should. It's one of the areas we encourage physicians to monitor closely in order to improve outcomes and manage risk."
Bobbie S. Sprader, JD, an attorney at Bricker & Eckler in Columbus, OH, has seen several cases involving an incidental finding on an X-ray taken during a hospitalization for an acute surgical condition. In one case, the surgeon handling the acute condition deferred follow-up to the patient's primary care physician. The surgeon assumed that the hospital would send the primary care physician a copy of the report and that he would see it and act upon it. "It was never clear whether the primary care physician ever got the report, but he definitely did not act upon it, as it went completely unaddressed," says Sprader.
The surgeon took the position that because the finding was non-surgical and non-acute, it fell outside of his duties to the patient. The primary care doctor took the position that he did not order the test and did not even know that it had been done. "There were too many assumptions, and too little communication," says Sprader.
Here are some practices that could prevent successful lawsuits alleging failure to follow up on test results:
• Physicians should monitor patients for signs and symptoms associated with drug toxicity.
In one malpractice claim, a patient was prescribed a medication for treatment of bipolar disease. Farrell says, "The medication had several potential side effects, the most dangerous of which is aplastic anemia. Subsequently, the patient did develop aplastic anemia."
The physician ordered the blood levels, the results were elevated, and the physician didn't act upon the elevated results for two years. "Had the physician reviewed these timely, he would have had an opportunity to address the prescribed dosage," says Farrell. "The case was resolved in the low six figures, due to the off-set of the patient contribution."
Even though the subsequent litigation revealed that the patient consistently took more medication than was prescribed, adds Farrell, the physician was faulted for failure to follow-up on the test results.
• When test results of any kind are positive, lab personnel should document that the results were communicated to a clinician.
While most of the time the physician who ordered the test will review the results, acute and unexpected findings still deserve special attention, says Sprader. "The [lab personnel] would be well-served by stating right in the report that Dr. [Name] was advised that [finding] at [time]," says Sprader.
Farrell reports that members one radiology group saw a significant drop in their failure to diagnose claims after they began sending a notice to patients advising: "You recently had an X-ray read at X hospital and the results may require follow-up. Please take this report and share it with your primary care physician at your next visit."
The note ensures that even patients seen in a clinic setting notify their physician about recent films. "Often patients remember that the X-ray ruled out pneumonia, but don't recall the small mass that requires further work-up," says Farrell.
• Physicians should document verbal discussions that occur at handoffs.
"As a general rule, whoever ordered the test is responsible for [addressing] any abnormalities found, until an official hand-off occurs," says Sprader.
If the patient is hospitalized, the physician could document, for example, "Spoke with patient's PCP, Dr. Smith, who will follow up on [finding] as outpatient. Advised patient to see Dr. Smith in follow up in 2 weeks to address his [finding], indicates understanding."
Physicians sometimes do this step in writing, such as "Dear Dr. Smith: During a recent admission, patient was found to have [finding]. I have enclosed a copy of the report and will refer her back to you for further work-up for this finding."
However, "passing the baton" by letter leaves open the possibility that physicians can later claim they never received the information, says Sprader.
• Check patients' contact information.
Dan Groszkruger, JD, MPH, principal of San Diego-based rskmgmt.inc, once represented a primary care physician whose medical group adopted a strict rule to avoid failure-to-notify situations. "This physician made it a practice to call every new patient and to call every patient whose test results came back abnormal, in the evening of the same day," he says.
Because the physician's office staff knew about this practice, extra care was invested in double-checking the accuracy of telephone numbers or alternative contacts. "Calling patients after episodes of care clearly goes beyond a physician's standard of care," acknowledges Groszkruger. "But it may represent an emerging best practice, applicable to some medical specialties."
Depending upon the physician's specialty, personal telephone calls to patients might be impractical, and physicians have to determine what criteria merits a call, says Groszkruger. "However, the very best way to prevent unhappiness or dissatisfaction leading to a lawsuit is to impress each patient that the physician really cares about the patient's welfare," he emphasizes. (See related stories on tracking systems, below, and proving patients were informed of results, below.)
Tracking systems legally protective
Cambridge, MA-based CRICO has seen a marked increase in claims for failure to diagnose conditions, particularly cancers, that can be linked to a failure to follow-up on abnormal test results or on incidental findings reported on testing, reports assistant claims manager Megan C. Tapply, Esq.
"Often, the facts indicate that someone considered the follow-up, and maybe even wrote down what it should be, but then never implemented the plan," she says.
Tracking systems, whether in the form of a person, electronic system, or calendar or diary system, are the best way for providers to protect themselves from missing an abnormal result or from failing to follow-up on an incidental finding, Tapply says.
Amy E. Goganian, JD, an attorney with Goganian & Associates in Needham, MA, says, "Simply making the information available to providers by virtue of its inclusion in the medical record is not necessarily sufficient." A better practice is a policy of affirmatively notifying providers, via email or some other method, and double-checking that the results were received, Goganian says.
If presented with a claim based on failure to follow-up on a test result, physicians are in a much better position to defend themselves if they can detail the system the office uses to make sure test results don't get lost. Tapply recommends these practices:
• Include reporting on follow-up care by specialists.
"The communication gaps that often result in claims are those return loops from the specialist back to the primary provider," says Tapply.
She frequently sees a well-written consult note from a specialist laying out interventions to take after an abnormal result, and the note sent to the primary provider, but no evidence of any follow-up is in the chart. "Trying to defend that apparent disregard for the opinions of a consult requested specifically by the primary provider is an uphill battle," Tapply says.
• Document efforts made to follow-up on tests.
This step could be the only thing providers will be able to offer in their defense if a test result falls through the cracks.
"If the issue was that the patient failed to follow-up after being given specific instructions to do so, documentation of what those instructions were will be the saving grace," Tapply adds.
• Have a tickler system in the office to catch patients who would otherwise fall through the cracks.
This step can be the difference between a defensible case and one that must be settled. "A good system that can be defended, even in the face of a missed result, can shift the burden of follow-up from the provider to the patient," Tapply says.
Patient told about results? Prove it!
When a patient's primary care provider was informed of a lung nodule noted as an incidental finding on a chest CT after a motor vehicle accident, he referred the patient to a pulmonologist for follow-up.
"When the patient arrived at the appointment with the pulmonologist, chest films in hand, the images showing the lung nodule were missing," says Megan C. Tapply, Esq., an assistant claims manager at CRICO in Cambridge, MA. The pulmonologist asked the patient to get the full set of films and come back for follow-up.
"The providers involved recalled that the patient was informed that this was an important finding and could be cancer," she says. "The patient — when deposed, prior to her death — did not recall that part of their conversation."
Instead, she recalled leaving the appointment with the understanding that the pulmonologist or the primary care provider would be following up to get the films. "No one did, and five years elapsed," says Tapply. The patient never followed up, and the pulmonologist never made another appointment or followed up with the patient. Although the primary provider saw the patient for other reasons, the issue was never explored again.
The patient subsequently was re-evaluated when she began having symptoms. By then, her lung cancer had metastasized, was inoperable, and caused her death. The family sued the pulmonologist and primary care provider.
The variable that made the case particularly difficult to defend was the length of time between the initial imaging and the eventual diagnosis, Tapply says. "Often, when providers fail to initiate or complete appropriate follow-up after an abnormal result is reported, we can still defend the care by relying on causation experts," she says. The experts will testify that the delay of months or years did not change the overall outcome for the patient because the cancer was already metastasizing when the first incidental finding was noted.
The defense did have an expert who was willing to make that argument, but it would have been hard for a jury to accept, says Tapply, given the lengthy delay and the dramatic change in the size of the cancer between the first and second views. Another problem for the defense was that it didn't seem believable that the patient would not have followed up if she had really been told what the provider claimed, she explains.
"It was hard to imagine how a patient who was informed, well-educated, had lost family members to lung cancer, was a former smoker, and had at the very least been told that this was a significant finding requiring follow-up, just completely forgot about this for five years and failed to do anything," says Tapply.
Good documentation from the providers about their conversation with the patient made the case more defensible, although the specific mention of cancer wasn't documented.
"But whatever the patient's obligation, the physician's duty still comes down to the standard of care, and the standard of care requires follow-up on tests," says Tapply. "As is often the case, good documentation can save the provider."
• Molly Farrell, Vice President, Operations, MGIS Underwriting Managers, Salt Lake City, UT. Phone: (801) 990-2400 Ext. 272. Fax: (801) 990-2401. Email: firstname.lastname@example.org.
• Amy E. Goganian, JD, Goganian & Associates, Needham, MA. Phone: (781) 433-9812. Fax: (781) 433-9818. Email: email@example.com.
• Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc, San Diego, CA. Phone: (619) 507-0257. Email: firstname.lastname@example.org.
• Bobbie S. Sprader, JD, Bricker & Eckler, Columbus, OH. Phone: (614) 227-2315. Fax: (614) 227-2390. Email: email@example.com.
• Megan C. Tapply, Esq., Assistant Claims Manager, CRICO, Cambridge, MA. Phone: (617) 679-1233. Fax: (617) 495-9711. Email: firstname.lastname@example.org.