Avoid claim alleging missed cancer diagnosis

Laboratory or pathology results not sent to the proper physician or not sent at all. Receptionists incorrectly telling patients no follow-up is needed. Computer glitches causing erroneous cancellations of appointments.

Staff or administrative errors such as these often are the basis for successful malpractice lawsuits alleging a delayed cancer diagnosis, says Kristin Zeender, a claims consultant at Self-Insured Services Company, a subsidiary of RCM&D, a Baltimore, MD-based consulting company specializing in risk management and insurance.

"Staff should never communicate test results to a patient; nor should they be giving any kind of medical advice," Zeender advises.

In some states, a plaintiff must be able to prove that the claimant went from curable to incurable through the delay, while other states have a "loss of chance" statute that allows for the recovery of monies for the percentage of chance they lost even if they didn't have a greater than 50% chance of survival at the time of the missed diagnosis, adds Zeender. Here are risk-reducing strategies:

• Provide excellent communication with patients and their families, staff, and outside providers.

"Patient satisfaction is often predicated upon how much time the doctor spends in listening to and then discussing the patient's concerns," says Zeender. "Physicians are much less likely to be sued if the patient likes their doctor."

She recommends "drilling down" on a patient's reported symptoms to include onset, duration, frequency, and characterization of the symptoms; creating a timeframe for completion of diagnostic tests to create a sense urgency for the patient; and scheduling a follow-up appointment at the time of patient check out.

"This will give the physician a chance to re-examine the patient, review the test results, and counsel the patient further if needed," she says.

• Make your thought processes clear in the medical records.

"Poor documentation usually works in the claimant's favor if a claim or suit is brought," says Zeender. Creating a differential diagnosis in the patient chart and describing what you are doing to rule in or rule out what is on your list makes a chart much more defensible. In addition, subsequent changes to a chart might be seen as self-serving and could be counterproductive.

"Never go back and alter your records unless you clearly document the reason why you are doing so," says Zeender.

• Be proactive when obtaining test results.

"Seek out the information," says Zeender. "If a test, lab or consult is ordered, it is imperative that follow-up on the part of the ordering physician occurs."

By seeking out the information, not only do you ensure that you have received it, but you also can assure yourself that the patient has complied with your recommendations for follow-up, she explains.

• If you find that the patient has failed to follow your instructions, contact the patient and document it.

"In a handful of states, contributory negligence can bar a claimant from recovering damages," says Zeender. "In the remainder of the states, their recovery can be limited by their comparative negligence."

• Review past visits and patient medical history during patient visits.

Often, it is the constellation of symptoms that leads a physician to a diagnosis, and this process might have occurred over several visits, says Zeender.

"Without a review of past visits and history, key information may be overlooked," she says. "Successful missed cancer cases often are won by the plaintiff when it is perceived that the treating physician had 'multiple bites at the apple.'" (See related story on why missed diagnoses claims occur, below.)


For more information on preventing missed diagnoses claims, contact:

  • Toni Brayer, MD, FACP, Vice President and Chief Medical Officer, Sutter Health West Bay Region, San Francisco. Email: BrayerT@sutterhealth.org.
  • Kristin Zeender, Claims Consultant, Self-Insured Services Company, RCM&D, Baltimore, MD. Phone: (410) 339-5880. Fax: (443) 921-2519. Email: KZeender@rcmd.com.

Many claims involve failing to order test

Follow up is also factor in delayed or missed diagnosis

Many delayed or missed diagnosis claims come from failure to order the appropriate diagnostic test and/or failure to create a follow-up plan, says Toni Brayer, MD, FACP, vice president and chief medical officer of Sutter Health West Bay Region in San Francisco and chair of the underwriting committee of Medical Insurance Exchange of California, a medical malpractice insurer.

More than one-third of all claims against primary care physicians and radiologists are for missed or delayed diagnosis.1,2,3 "Many of these lawsuits point to a delay in seeing the test result or a problem with handoff of the patient," Brayer says. "Because there can be so many physicians involved in the care of patients, it can lead to confusion about who is responsible for following up with a patient once the test is done," she explains.

These lawsuits can result from system errors or cognitive errors by the clinician, adds Brayer. "The majority of primary care physicians are not happy with their systems for test result follow-up," she says. "Patients go to varied labs and imaging centers. Unless there is a fail-safe mechanism for tracking all orders, some results will fall through the cracks."

EHR triggers alerts

"If all labs and diagnostic tests come to a physician's electronic 'in-basket' and cannot be filed without her signing off on it, the tracking of tests will be much simplified," says Brayer. The electronic health record (EHR) also can trigger alerts for routine screening that is considered standard of care, she adds.

For those physicians without a functional EHR, Brayer says that tracking mechanisms need to be put into place, such as a tickler file with all ordered tests that is followed up by the medical assistant to make sure the patient actually received the proper screening or diagnostic study.

"Nothing should be filed in the chart without the doctor's signed initials on the study," adds Brayer. Patients should be instructed to call the office if they have not heard the test results, and no patient should be told, "If we don't call you, it means everything is normal," says Brayer.

Focus on these areas

"Cognitive errors can never be eliminated," says Brayer. "Clinicians should focus on areas where most mistakes are made and lawsuits are found for the plaintiff."

She recommends these practices:

• Make sure the date on the diagnostic exam is correct and you are looking at the most recent result.

• Make phone calls to referring physicians, and document the information in the medical record.

"This takes time, but is one of the most important steps in effective hand-offs that protect patients and prevent lawsuits," says Brayer.

• Keep an up-to-date problem list. "This can help with complicated patients who have many conditions. It helps the doctor follow up on past issues that may come back," says Brayer.

• Make sure every symptom a patient relates has a corresponding physical exam and follow-up documented in the chart.

• Be sure you have a plan for any clinical finding that has a negative pathology report or imaging study.

"The patient should be instructed to follow-up if the symptoms persist or change, and a time for follow-up should be clearly given," says Brayer. "Charting documentation of this follow-up recommendation is essential."


  1. Kern KA, Medicolegal analysis of the delayed diagnosis of cancer in 338 cases in the United States. Archives of Surgery 1994; 129(4):397-403.
  2. Gandhi TK, Kachalia A, Thomas EJ, et al. Missed and delayed diagnoses in the ambulatory setting: a study of closed malpractice claims. Ann Intern Med 2006; 145(7):488-496.
  3. Kostopoulou O, Delaney BC, Munro CW. Diagnostic difficulty and error in primary care — a systematic review. Family Practice 2008; 25:400-413.