Is there an incidental finding? No follow-up can get you sued
Inaction can be 'difficult to defend'
A patient's CT scan ruled out a pulmonary emboli, but showed a 1.5 cm nodule in the right upper lobe of the lung. When the patient returned six months later, the physician noticed the previous finding and referred the patient for follow-up, which revealed metastatic lung cancer.
The patient claimed that no one had told her of the initial finding and sued for delayed diagnosis, reports Lizabeth Brott, JD, regional vice president of risk management in the Okemos, MI, office of ProAssurance, a writer of medical professional liability insurance, who reviewed the case.
If an incidental finding is identified and the physician does nothing about it, and the patient is later diagnosed with a serious problem related to that incidental finding, "that creates a serious risk for the physician," says Brott.
Incidental findings are surprisingly common, adds Brott. In one study, intracranial findings were identified in 6.6% of 953 children who underwent brain magnetic resonance imaging, with potentially serious or urgent findings in 0.6% of these.1 Incidental findings were identified in 45% of 321 noncontrast "renal stone" abdominal CT scans done in an emergency department, with half of "moderate" or "serious" concern.2
"I am not suggesting every incidental finding poses a malpractice risk," says Brott. "But for the ones that aren't benign, the possibility is there." Avoid these risk-prone practices:
• Failure to discuss the incidental findings with the patient.
"This is especially important if you are the physician who referred the patient to the specialist or the hospital for the test," says Brott. "When there is a finding that has a moderate risk and it is completely ignored, that could be a difficult case to defend."
If the report with the incidental findings originated from a specialty practice or radiology, the radiologist or specialist should discuss it with the patient or refer the patient to the primary care physician to determine what follow up is needed, says Brott.
• Failure to include incidental findings in the report.
"If the referring physician doesn't have that information, he or she would obviously not have any liability," she says. "However, if the patient continues to experience symptoms and there is a lack of follow-up, the referring physician can get dragged into the claim."
• Delegating to physician extenders and nurses without proper training and without a system in place to ensure findings are noted and addressed during the everyday provision of care by the doctor and staff.
D. Jay Davis Jr. JD, a partner at Young Clement Rivers in Charleston, SC, and chair of the firm's Medical Liability Practice Group, says, "The most common mistake I have seen is the rushed doctor who has developed great trust with an extender that does not thoroughly review the findings, conclusions, and follow up plan of his or her extender."
• Failure to document the patient's response.
Document the patient's agreement with your recommendation for follow-up, and document that the patient made an informed refusal if he or she refuses to comply, advises Brott.
The best practice is to have the patients sign an informed refusal form stating that they understand the risk of not following the doctor's recommendations, but if this signature is not possible, document that the patients understand the risks of not following your recommendations and choose not to pursue them, Brott says.
"A sentence in the chart will help tremendously in those situations," she says.
In some cases, the doctor and patient might agree not to pursue further testing. "It is possible that the patient might sue later," says Brott. "But that is a far more defensible situation than the doctor making the decision unilaterally and the patient saying, "Nobody told me.'" (See related stories on documenting discussions about incidental findings, below, and how EMRs can affect liability risks involving incidental findings, p. 16.)
References
- Jordan LC, McKinstry RC, Kraut MA, et al. Incidental findings on brain magnetic resonance imaging of children with sickle cell disease. Pediatrics 2010; 126;53-61.
- Messersmith WA, Brown DFM, Barry MJ. The prevalence and implications of incidental findings on ED abdominal CT scans. Am J Emerg Med 2001; 19:479-481.
Sources
For more information on liability risks of incidental findings, contact:
- Lizabeth Brott, JD, Regional Vice President, Risk Management, ProAssurance, Okemos, MI. Phone: (800) 292-1036 or (205) 877-4400. Fax: (205) 414-2806. Email: [email protected].
- D. Jay Davis Jr., JD, Partner, Young Clement Rivers, Charleston, SC. Phone: (843) 720-5406. Fax: (843) 579-1355. Email: [email protected].
No documentation of your discussion? D. Jay Davis Jr., JD, a partner at Young Clement Rivers in Charleston, SC, and chair of the firm's Medical Liability Practice Group, was involved in a case in which a general surgeon consulted for appendicitis successfully treated the condition during surgery, with an abdominal CT scan ordered as part of the preoperative workup. The radiologist identified a "questionable malignancy," and the doctor identified the problem and discussed it with the patient. "He spoke verbally to the patient about the findings. He expressed some doubt as to the finding, but advised follow up with his a physician," says Davis. After discharge, the patient did not return for postoperative visits. "The doctor did not document these discussions about the finding with the patient or that he had recommended follow up on the finding," says Davis. "The patient passed away from the cancer." Although the doctor thoroughly documented his treatment of the surgery, he didn't do the same for the CT findings, since they were questionable, not related to the admission, and he expected the patient to return, Davis explains. "The patient then had the bad outcome. Suit was brought not for the surgery, but failure to follow up on an unrelated CT scan and refer to an oncologist," says Davis. The case was a "perfect storm," since the doctor was not looking for cancer, wasn't not focused on documenting and planning for an unrelated and questionable finding in the hospital record, and the patient never came back, so no office records would confirm the discussion during follow up, Davis says. "The patient and his family denied any conversations occurred or that any follow up was ever recommended." says Davis. Chart is major focus "I really do not believe there is any such thing as an 'incidental' finding in the medical-legal arena," says Davis."A finding is just that in the eyes of the patient and, almost as importantly, in the eyes of a plaintiff's lawyer." Plaintiff's lawyers will attack the physician for failure to follow up any serious problem that needs follow up, adds Davis. "It simply does not matter much to the plaintiffs' lawyer that the doctor was treating an unrelated problem at the time of the finding," he says. "Many times, labs and radiographic tests ordered for specific problems but covering a broad range of issues are the culprits in these cases." Davis says that the most likely legal theories asserted by plaintiffs against physicians in this scenario include failure to advise the patient of the incidental finding, failure to document the incidental finding, failure to document actions taken, failure to run further tests to confirm or evaluate the finding, and failure to refer the patient to a specialist. "Dovetailing with the failure to advise is the failure to properly document the medical chart, which is always a major focus in every case," says Davis. "If there is a finding that is not going to be worked up, you must document why and what the plan is going to be in light of the finding." |
A patient's CT scan ruled out a pulmonary emboli, but showed a 1.5 cm nodule in the right upper lobe of the lung.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content