Notes from a Medical Malpractice Plaintiff Attorney: Communicating Critical Findings

by “Dr. J.D.”

Allegations of communication failure account for a progressively increasing proportion of malpractice claims.

This is partially the result of the fact that more diagnostic studies and examinations are being performed and expectations of timeliness in reporting have increased with improved technology, but in the day-to-day working reality of consulting physicians communication usually fails for same simple reasons that it has in the past – difficulty in reaching the target recipient, distraction by other work and, frankly, annoyance that leads to giving up too soon

All of these will, of course, be exacerbated in an environment of increased volume and shorter turn-around times. It is therefore necessary to have a systematic approach to turn to.

Let’s therefore look at some of the essential principles involved in the communication of critical findings and some reasonable protections against falling into liability.

1. Duty

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Although radiologists and pathologists are the physicians most likely to come across an unexpected finding and to have to communicate it to an absent referrer, the responsibility to communicate appropriately applies to all consultants.

It is a black letter piece of carved-in-stone law – as well as an absolute of medical ethics – that a consultant physician’s duty to communicate a critical finding is not satisfied merely by creating and signing a report or a chart note.

It is not satisfied until that information is in the hands of someone who can act on it definitively enough to relieve that physician of his or her obligation to communicate it.

The source of that obligation, like any other duty to a patient, is the doctor-patient relationship, and that applies even to consultants like radiologists and pathologists who never meet the patient personally.

In fact, courts have explicitly rejected the idea that “indirect” medical care carries a lesser duty. Actual lack of proximity to the patient is deemed irrelevant to the duty that arises from the element of care that a doctor is providing within the overall scheme of the patient’s diagnosis or treatment.

Put simply, until your particular consultancy stage in the care is closed, it is still open, and all duties therefore continue to pertain.

This is because of how causation is established in a medical malpractice case. It is seen as a chain of sequential events that only terminates as to the foreseeable conduct of the original actor when someone else acts to override that by entirely separate deficient conduct of their own, an event which is called an “independent intervening cause”.

In the notification scenario that is extremely important because that the referring physician might fail to read the report at all – which would be an independent negligent act – does not undo the liability of the consultant who failed to relay that report appropriately because that the referring physician might do so is foreseeable. Therefore, in that setting, the consultant becomes a defendant along with the referrer – each for their own role in the failure to utilize the information in the care of the patient – if the patient is harmed thereby.

The duty to communicate important matters promptly also applies when reviewing someone else’s work. This most commonly occurs with the supervision of residents who cover a service for consults at night and then have their work reviewed by the attending the next day but is increasingly occurring with night teleradiology coverage.

In those settings, a consultant making a change to the prior report that reflects an urgent matter should issue an addendum and then follow the procedures described in section 3 (below) to actually get the information to the referring physician or their surrogate.

2. Scope

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What information requires a higher level of reporting?

The answer depends on two factors:

1. Will the information change the patient’s care?

2. How immediate is the need for the information?

Therefore, issues like a malplaced subclavian catheter or a rapidly decreasing hematocrit or clinical or radiographic evidence of an acute DVT – all facts that will change the patient’s care and can cause serious complications that may occur before the report has the chance to filter through normal channels – must be reported with the highest standard of effort, as will be discussed below.

By contrast, an issue like an unexpected nodule on a chest X-ray performed to establish resolution of pneumonia or an unexpected renal lesion on an MRI performed for a herniated disk or a suspicious mole identified while doing an unrelated physical examination are all serious but do not require immediate attention and so can be handled by a phone call during normal hours on the next business day if the referring physician cannot be reached immediately. However, it would not be appropriate to risk such vital information to just a standard report that can frankly get “lost in the sauce” of the 800 chemistry reports, 40 radiology reports and 12 pathology reports that an average primary care physician receives every week,

It should be specifically noted that while unexpected findings often figure in failure-to-report scenarios, the expectedness of the finding is actually irrelevant as to whether communicating must be aggressively pursued. What matters once an important finding is made is whether confirmation of that expectation is needed quickly. Therefore, a new pneumonia on the chest X-ray of an untreated out-patient being examined because pneumonia is suspected should be reported sooner even though the pathology was suspected because getting the patient into care is time-critical.

3. Process

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In 1995, the American College of Radiology revised its Standard for Communication to state:

If there are urgent or significant unexpected findings, radiologists should communicate directly with the referring physician or other health care provider, or an appropriate representative who will be providing clinical follow-up.

This standard of direct contact should actually be adhered to by physicians in any specialty who come upon a finding that requires enhanced communication.

Of course, that is easy to just say.

In reality, proper communication usually fails because it is frankly burdensome during a busy day and is therefore stopped at a point that is too early in the process to actually get the message where it needs to go in as timely a manner as it needs to get there.

That is why, when I lecture on medical malpractice, I talk about keeping “the Michelangelo standard” in mind.

This refers to the famous scene in the Agony and the Ecstasy in which Pope Julius continually asks Michelangelo, who has been working on the Sistine Chapel ceiling for many years, “When will you make an end?” and Michelangelo replies, “When I’m finished”.

Communication of critical medical facts ends when you are finished and not before.

In fact, a consultant who initiates a communication process but then stops too soon can be in greater medicolegal jeopardy than one who never begins that process at all because, by their conduct, they have made it irrefutable that they thought that the matter was serious and warranted above-average attention. The failure to follow through on that adequately is then not defensible.

What this standard does, therefore, is create an algorithm.

The consulting physician should first try to directly contact the referring physician by phone as soon as possible.

If that is accomplished, the matter is then closed. There is no obligation on the part of the consultant to make sure that the other physician actually then takes appropriate action.

However, if that direct phone contact is not possible, a message can be left with someone who can reasonably accept the responsibility to notify the referring physician or will, themselves, undertake the necessary care of the patient.

Again, if that is achieved, the consulting physician has fully discharged his or her duty.

There are caveats here, however.

Obviously, talking to a physician associate of the referrer or to a credentialed medical staff member (RN, NP, PA) in their office or to a covering physician or to a nurse on the floor where the patient is housed is sufficient because those are all people both empowered and realistically able to take the next steps themselves.

However, leaving the message with an answering service may not, in and of itself, be sufficient because the message may be mangled as to the facts by the operator or may never even be sent. When dealing with an answering service it is therefore best to not give a medically detailed message and to instead identify yourself as a physician and the situation as an emergency and to ask to be called back by the referring doctor.

Similarly, simply sending a fax or an e-mail will not be deemed sufficient unless the consultant knows that it will be received. If such a method is used, the consultant should include a request to be informed that it has been received and should check that it has been if he or she hears nothing back within a reasonable time.

If, despite all appropriate efforts, it is absolutely impossible to reach a medical or nursing practitioner to give the message to:

– and the patient is hospitalized, the consultant should take the matter to hospital administration.

– and the patient is not hospitalized, the consultant should call the patient and tell them to come into the ER, and then also contact the ER to alert them of the facts in the case.

What is never acceptable is to decide on your own through second-hand information that what seemed to you to be a critical matter worth urgent reporting is not so. An example of this was a case in which a radiologist saw that a subclavian catheter’s route was incorrect and called the floor nurse to ask if there was blood return from it. When told that there was, the radiologist did not report the malplacement. There had, in fact, been perforation by the catheter and a successful lawsuit was the result when serious complications ensued that could have been avoided had the radiologist conveyed the report.

This leaves only the issue of telling the patient as an initial step.

If there is no statute in place that requires this, such as the MQSA does for mammography, and if the patient is not self-referred, then it is optional as to whether you directly inform the patient. You have to weigh whether telling the patient will facilitate or impede them getting appropriate care. Simply put, you do not want to create panic or to open a situation with the patient in which you will have to provide advice before they consult their primary physician.

In general, it is collegially best to let the referring physician handle important matters with their own patient because that will be done in the much fuller and more appropriate context of their ongoing relationship.

From a medicolegal standpoint, that is a non-risk situation for you as long as you have relayed the information to the referring physician appropriately. In fact, it is actually medicolegally less risky because if you opine outside your field of expertise and that diverts the patient from proper care you will be held to the standard of an expert in a field that is not yours.

In full disclosure, I should note that courts are increasingly finding a duty to inform the examinee directly even in the absence of a statutory mandate, but the fact is that those cases only reached the courts because reporting to the primary physician was not done fully and so the information was actually given to no one. Those cases really serve more as reinforcements of the understanding that an inability to reach a physician, nurse or administrator does not end the matter for the consulting physician with critical information to relay, and so the patient should then be contacted.

4. Documenting

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As we all know, “If you don’t document it, it never happened”.

You simply do not want to be in the position of having the referring physician, now a defendant with you in a malpractice action because the important issue was never treated, claiming that he or she was never alerted by you, with you being able to proffer no more than your own claim that you probably did relay the information but you cannot be sure.

You therefore want to document whom you spoke to and when you spoke to them and what they said.

You do not, however, want to put in a narrative. Nothing stirs a plaintiff’s attorney’s interest in a case in which information was not properly conveyed so much as a note like “After multiple lengthy attempts to contact Dr. X, I was informed that he was not answering his pages because he was at a party. I had many patients waiting and so I gave the report to his answering service to be given to Dr. X.”

The writer of that note (based on a real case) thought that he had portrayed Dr. X as a terrible doctor and himself as a responsible one, but all that he had really done was portray himself at someone who knew the matter was important but got annoyed and so tossed the matter to the answering service despite knowing that Dr. X was not responding. He was genuinely shocked that he shared liability with Dr. X (who had actually never answered) after there was a serious resulting harm to the patient.

In fact, the need to engage in an explanatory narrative should actually be a signal to you that you have probably not completed the notification process as it must be completed since a proper communication can be expressed very briefly and minimally:

– This report was given to Dr. X at (time) on (date). He/she will be following up.

– Dr. X was not available. This report was therefore given (time, date) to [A, Dr. X’s NP / B, the head nurse on 8H / C, the administrator on duty], who stated that he/she will follow up on it.

– Dr. X was not available and no appropriate covering surrogate could be reached. Mr. Patient was therefore contacted directly at (time, date) and told to come to the ER. Dr. Y/Nurse Z in the ER was informed and (critical information) was reviewed with them.

Note that in each case the time is included as well as the date. Because timeliness of reporting will be critical, the importance of including this cannot be over-emphasized, particularly if your report will carry an automatic time stamp. You may not be formalizing that report until sometime later but you want to establish when you actually transmitted the information. When minutes may matter, you want minutes to be documented.

Note also that the person you spoke with is specifically named. Documentation such as “Results called to floor” or “Report given to ER” or “Patient’s nurse contacted” are of very limited value as a defense against a claim that you never actually sent an appropriate alert. By contrast, specificity not only acts as credible proof that you did indeed make the appropriate contact, it also establishes who in particular was probably the failed link in the chain, since you were clearly not.

Finally, do not hold off on a final report being processed if the communication effort becomes lengthy. Instead, if your report is finalized by the time you complete the communication process, create an addendum to that report.

In summary: Proper communication of critical findings is an essential duty of a consulting physician. Using a common sense algorithm it is possible to make sure that this duty is carried out fully, thereby ensuring proper patient care and avoiding liability.