by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast
That the choice to ally with someone who has harmed your patient and to deny your patient critical facts about their own health is an utter betrayal of the trust at the core of the physician-patient relationship is obvious.
However, it is also an excellent way to get yourself sued, and sued in a way that your malpractice insurance will not cover and that your malpractice carrier will not defend.
You have a duty of care to your patient that is predicated on the patient being informed as to matters concerning their own health. As soon as you decide to not reveal a relevant fact without a clinically valid reason to do so, you have breached that duty, and preventing the patient from possibly suing another doctor certainly does not come under the heading of “clinically valid”. If the patient is harmed as a result of your choice to deny them information about themselves because you wanted to shield another doctor, you will be liable for that harm and can be sued for it.
You can also be pulled into someone else’s malpractice case if you prevented the patient – now the plaintiff – from knowing about that other doctor’s error and that denial of information then led to a worsening of the harm that the other doctor’s malpractice initiated. That is because you are responsible for what is reasonably foreseeable to be a result of your conduct, and not telling a patient that they have been malpracticed on is certainly reasonably foreseeable to result in that patient not being able to seek correction.
In fact, even if the patient-turned-plaintiff does not bring you in, the defendant doctor can do so, demanding that you share in the judgment for your role in worsening the situation and thereby driving up the ultimate verdict or settlement.
In fact, when things hit the fan – which they will – the one thing that you can be certain of is that the doctor you covered for will show no loyalty to you.
There is also the fact that, if you practice in a jurisdiction with a Discovery Rule under which the ability of the patient to bring a lawsuit accrues when they know or should have known about the malpractice, if you intentionally interfere with the patient finding out about the malpractice when they reasonably should have you are not just liable for any damages they sustain thereby but you also increase the time to bring the case because in such jurisdictions the time to bring a suit is extended if there has been intentional concealment of the malpractice.
Even if you are in a jurisdiction where there is no Discovery Rule and the Statute of Limitations has already run out against the original doctor, you can still be sued independently for fraudulent concealment of the facts, which in most jurisdictions has a Statute of Limitations at least three times longer than that for medical malpractice.
However, because your conduct in all of these situations was intentional rather than negligent it will not be covered by your malpractice insurance. You will have to bear the costs of your defense and any verdict or settlement against you on your own.
That should be a very sobering thought.
Now, none of what I have said means that you cannot do what you think is appropriate to minimize the risk a colleague will face.
If the matter is such that it can sustain a minor delay, you can contact the doctor you believe has committed the malpractice and ask them to deal with it.
However, if you do do so you cannot then just close the book on the matter. You must follow up within a short period of time – remember, you may have to argue later that any delay that you introduced into the matter was not clinically significant – to make sure that it has been addressed. If it has not, then you must deal with the patient yourself.
Whether you are speaking to the patient initially or only after the malpracticing physician has failed to do so, you can, of course, put the matter in context to the patient. You can emphasize that there are alternative ways to deal with a medical issue or that the error was probably not clinically significant if you believe that those facts apply.
Of course, any conversations with another physician or with the patient should be fully documented by you.
In doing so, use restraint even if the other doctor’s conduct has changed your attitude about them from protective to exasperated.
You want to protect yourself from a retaliatory lawsuit by the other doctor and so you want to be seen as a professional doing what was right, not someone with a personal grudge. Make the points that (1) you detected the problem and (2) you made sure that the patient was informed in a timely manner, and then stop.
The one thing that you should never do – whether speaking with a patient or writing a note – is to state definitively that “This is malpractice”. That is a legal conclusion that you are not reaching.
You are laying out the clinical facts to make sure that your patient is properly informed, which is your ethical duty as their physician, and nothing more.
All of this so far relates to a situation where you do not have to be directly involved with the other doctor’s negligent conduct. Some specialties, such as radiology and pathology, must, however, issue reports that incorporate review of prior studies, and so those physicians face an additional hurdle when dealing with someone else’s previous mistake.
However, even in these settings, the same rules apply.
Simply issuing your own report as though the other report never existed is absolutely unacceptable, and when it comes to light later you will be just as on the hook for any delays you introduced and just as subject to being held liable for intentional concealment as a doctor who was dealing with an entirely independent practitioner’s error.
…and it will come to light. Plaintiff’s attorneys are very savvy as to how a work-up proceeds and will also pay attention to the patient’s own history of what was done. If a gap appears to be present they will get copies of the billing records and match them to the studies they have reports for. Therefore, the study you pretended never existed will be found and your attempt to conceal it will do you great medicolegal harm.
You will also be opening yourself to being seen as negligent. That is because comparison to prior studies is part of the standard of care. Your apparent failure to do so – that is to say, a gap that you create by pretending that you never saw what you actually did see – will later look like a breach of the standard of care on your part if there is a lawsuit.
You do have the option to contact the physician who made the error and offer them them the chance to issue an addendum and contact the patient on their own. Of course, the same obligation to make sure that they did so as was discussed above will then apply and you will, just as in any situation, document the events in your own report.
You can also include any mitigating matters in your report – the finding was less clear previously, the rate of change is minimal and likely not clinically significant, etc.
There is also the problem of detecting malpractice by someone you are bound to in some degree of interest, such as a member of your own group or partnership or a staff member at a hospital where you have privileges.
Here, your concerns are very personal: Will I be putting myself on a financial hook? Will I be seen as a troublemaker by my hospital?
The simple answer is that the patient’s right to know about their own health and your duty to convey it trumps those issues, but in the real world there are ways to accommodate both.
If you are not able to get the other physician to deal with the problem themselves, you can bring the matter to the senior or operational partner of the group or to the administration or counsel of the hospital to offer them the chance to deal with the matter.
Again, you will use professional restraint when setting the matter out for them and will document what you did.
They have every incentive to act on what you tell them because they will face liability as partners or as employers/supervisors if there is a lawsuit, and so it is in their best interests to mitigate their future losses by contacting the patient early and possibly even working out an alternative settlement.
On the other hand, if you fail to bring the matter to their attention, you will be potentially liable to them for losses they suffer as a result of your concealment.
In other words, it is far better to be the helpful bearer of bad but controllable tidings than to be seen as an accomplice.
If, however, they do nothing or try to conceal the matter, you must speak to the patient. Your duties and ethics as a physician require no less.
In summary: Your loyalty is to your patient, not to the other doctor, but you can balance the two.