Missed Chest X-Ray and Delayed Diagnosis Leads to Lawsuit

Background facts

Dr. W had been the sole owner of a primary care health facility, known as ABC Medical ("ABC"), for nearly 30 years. As he approached what he thought might be his last few years in practice, he wanted to take more time for himself to be able to travel more with family and to generally slow down. To accomplish those goals, Dr. W decided to hire a nurse practitioner, E, to perform an increasing portion of patient care. Dr. W and E worked with their respective attorneys to create a collaborative practice agreement, which would incorporate their professional and financial desires, while fully upholding state laws. The agreement was reached rather easily, and it was reduced to writing and fully executed.

According to the local rules, as set out in the agreement, Dr. W was required to maintain "general supervision" (a term very loosely defined in their state) over E, which included the concept that E's making of diagnoses and consequent alterations in health status and treatment regimens needed to be done in "collaboration" with Dr. W or another physician employed by the office, of which there were none at the time of signing.

Dr. W quickly began making plans for family travel and grew to enjoy his time away. While Dr. W was on a two-week-long vacation some 200 miles from ABC, he spoke with E every day, checking in to make sure all was going smoothly; E was free to reach out to Dr. W as she felt was needed, for consultation and input. A longstanding patient of the practice, G, a 53-year-old woman with mild hypertension and COPD, owing to a 25-pack-a-year history of cigarette smoking, presented to the office during that first week, bringing along her teenage daughter. G had not had a medical exam for a while, and she was concerned about a non-productive, lingering cough that had lasted almost a month and seemed to be worsening. Following examination, E was not overly alarmed by what she saw and auscultated, attributing it to common COPD findings. But, because of the smoking history, she referred G for a chest x-ray, "just to be on the safe side." E told G that, unless there was some abnormal finding in the study, G would not hear from the office, and she should go about her life as usual, returning yearly. E made no mention of the visit to Dr. W.

A large, local radiology office performed the study the following day, and electronically forwarded the report to ABC, as it regularly did, two days later. A receptionist at ABC received the report and placed a printed copy of it in G's paper chart, expecting that Dr. W would review it upon his return, but she did not flag it in any way, not understanding the significance of the words "gray consolidated area RML, suggestive of potential neoplastic disease; suggest clinical correlation and potential follow-up.” Upon his return to work, Dr. W was met with a stack of charts, focusing only on those that had been flagged, presuming that E had addressed everything else in his absence. No contact with G was made.

As advised, G returned to ABC nearly a year later, this time seeing Dr. W. She complained that her cough had persistently worsened and her shortness of breath had become more limiting, but she simply presumed that these symptoms were the result of her smoking habit, which she constantly tried, unsuccessfully, to break. She told Dr. W that she was not worried because her prior exam with E was normal, and she had a (presumed) normal CXR. Dr. W looked at the radiologist's report for the first time and immediately grew upset. He referred G to a pulmonologist, giving her a copy of the report to take with her; the pulmonologist began a complete work-up of G, leading to a diagnosis of squamous cell carcinoma, which had originated in the right middle lobe bronchus, had infiltrated the majority of the right lung, and had metastasized to the liver and spine. G was told that her disease was Stage IV, with little chance of survival for more than a year. Despite a course of chemotherapy, which was stopped midstream by G due to side effects she could not tolerate, G succumbed, leaving a teenager who would live with her stepfather.

Legal action

The stepfather sought out legal assistance to try to help his stepdaughter obtain the funding she would need to go to college. A well-known attorney whose practice focused on medical malpractice obtained the records and received expert opinions. The attorney accepted the case, arranged to have a representative for the Estate of G, and began a lawsuit against E, Dr. W, and ABC.

Even though a single malpractice carrier insured all of the defendants, E was assigned different defense counsel from Dr. W and ABC to protect against any conflict that might arise between the various defendants. After discovery was completed, the case proceeded to trial, with both E and Dr. W refusing attempts at settlement. In short, the negligence arguments posed by the attorney for the Estate (the plaintiff), were: E failed to accurately assess G's clinical condition and subsequently failed to review the report of the CXR she had ordered; Dr. W failed to exert any level of supervision over E by failing to insist that G actively collaborate with him — in his vacation absence — on any clinical situation, such as G's, that was more than routine; and ABC failed to have an effective protocol in place and implemented which would have required that every external test result be personally reviewed by a medical professional, rather than permitting a lay receptionist to determine what studies needed to be "flagged" as potentially important and which did not. On the causation front, plaintiff's counsel argued that, due to the rapid growth potential of this particular tumor, which was histologically found to be poorly differentiated, the year-long delay in diagnosis allowed for the untreatable metastatic condition, which took G's life.

With both E and Dr. W in the courtroom, hearing the arguments and expert testimony against them, they withdrew their settlement refusals mid-trial, leading to a settlement, which was apportioned between all defendants.

Takeaways

The various state laws vary greatly in terms of levels of required responsibility and oversight by physicians as to NPs (as well as many other aspects of practice laws in general), so practitioners engaging in such relationships ought to be fully aware of local requirements — usually by enlisting the advice of business counsel — and ensure that they are followed. Had this case proceeded to be decided by the jury, the judge would have charged the jurors regarding a concept known as negligence per se, which broadly means negligence as a result of a violation of statute, which here would have been consideration of whether Dr. W appropriately supervised E, according to the statutory language: if the jurors found that not to have been the case, it would have made their pathway toward a verdict for the plaintiff simpler, as it connotes that a violation of a statute meant to protect patients creates a presumption of liability.

This case points out an all-too-common scenario in which lay office staff are delegated the authority to make medically-based determinations which then guide advice to patients or, as here, lead to clerical errors that, in turn, lead to delays in treatment or inappropriate treatment. Office staff members play key roles in the management of many day-to-day events, such as scheduling, billing, and insurance filing, so their value there cannot be overstated; but any and all actions that require determinations to be made based upon clinical considerations are properly made only by medically trained professionals, without exception. The limits of the roles of non-professionals need to be clearly established by the physicians who oversee the day-to-day management, and they should spell them out to all employees. When non-professionals offer clinical advice, and harmful effects result from that advice, the legal principle of vicarious liability — errors on the part of employees are viewed as though the employer erred — takes hold. Whether the employer is a doctor or an entity, the ultimate responsibility falls upon that "higher-up.”

The defendants in this case study had "pure consent" provisions in their malpractice policies. Such provisions give practitioners the right to refuse to settle a malpractice case. Exercise of such provisions prevents a carrier from settling a case without the agreement of the provider. By contrast, a provider's consent to settle is not a mandate to the carrier that settlement must be accomplished; it simply allows for a settlement if the carrier and defense counsel believe settlement to be appropriate, and then if an acceptable settlement amount can be agreed upon by all. Policies without pure consent provisions allow the professional liability carrier full control as to whether a case will be settled or tried before a jury. This concept is one to be seriously considered by practitioners when "shopping" for policies and carriers.

Perhaps the biggest takeaway here is that passive follow-up is far less desirable than active follow-up. Saying to a patient that they will be contacted only if there is an abnormality in their condition is passive and subject to a host of deficiencies, as was demonstrated in G's care. Instead, actively advising all patients of all test results and the like, regardless of whether they are worrisome or not, guarantees that every patient will be contacted following all diagnostic procedures. Similarly, placing the burden on the patient to contact the office if the patient suspects a problem, rather than the office reaching out to all patients after procedures, falls short of assuring that patients are adequately and properly followed until the points of full resolution are reached.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.