Legal Report: Follow Up Falls On MDs

Physician responsibility when patients don’t keep appointments or test results don’t come back.

Commentators

• John Cassidy, JD; Ficksman & Conley; Boston, MA

Transcript

If lab results don’t get to the ordering physician or a patient doesn’t follow through on a physician’s recommended referral or test, will the provider be blamed if the patient has a bad outcome? In this month’s Legal Report, malpractice defense attorney John Cassidy of Ficksman & Conley in Boston, says the answer is “sometimes.”

When discussing the duty to follow up, physicians often ask, “what is my responsibility?” or “doesn’t the patient have any responsibility?” As with most everything in law and medicine, there is no “black and white” answer to the question.

The first step toward understanding the scope of responsibility is defining the scope of the issue. Are we talking about tests or consults that were completed, or are we talking about something that was recommended or ordered but not actually performed? Under both circumstances, the physician is held to a legal standard of what is “reasonable.”

Juries don’t want to see physicians skirting responsibility or appearing to blame the patient. Generally speaking, physicians will be held responsible by a jury for obtaining the results of tests or consults that they have ordered. This is true regardless of whether the test is a routine CBC or a diagnostic study. Juries assume that physicians order studies because they need that information to make a timely and accurate diagnosis or start appropriate treatment.

From a small group practice to a large tertiary care unit, providers must ensure that reliable systems are in place so the physician sees consultant reports or lab results and sees them on time. But the ordering physician is not alone. The interpreting physician shares some of the burden, specifically, to communicate important results in a timely and appropriate, i.e. reasonable, manner.

What is reasonable will be dictated by the circumstances. If a potential lung cancer is found on a routine preoperative chest film, for example, most juries will find it reasonable for the interpreting radiologist to not only send a written report to the surgeon and the primary care physician, but also to make prompt telephone contact with one or both. This is true even if the suspected lesion is not a contraindication for the intended surgery. The goal is to ensure follow up, and “belt and suspenders” redundancy is sometimes advisable.

What if a test or referral or return visit is recommended by a physician but the patient does not follow through by making or keeping the appointment? Experience tells us the doctor and patient share the responsibility. If the patient has a bad outcome and sues the ordering physician, a jury will likely decide in favor of the physician if they see evidence of the following: the physician adequately communicated to the patient the need for a return visit or an appointment somewhere else, and then adequately followed up if the patient failed to do so.

Some system must be in place for identifying missed appointments and communicating with patients about the matter. It is likely not enough to simply say, “I advised the patient and she didn’t follow through.” Better to be able to say, “I advised the patient to have the test and she didn’t follow through, so we sent her a reminder letter and she still didn’t follow through.” This demonstrates that the provider gave the right advice and made a reasonable effort to follow up with the patient. The defense can be helped by notes in the record about any disagreements with the patient about follow-through and efforts to explain the level of concern about risks and benefits of foregoing further study. The reasonableness standard will apply on a case-by-case basis and requires evidence of extra effort when follow-up care is more urgent and the consequences of failure more serious. Not only does this put the physician in a good position legally to defend herself, but more importantly it is good medicine.