Episode 070: Failure to Follow Up

Speaker 1: You are listening to Your Practice Made Perfect; support, protection, and advice for practicing medical professionals, brought to you by SVMIC.

Brian: Hello, and thanks for joining us on this episode of our podcast. Today, we're going to be taking a look at a closed claim, and we have some great information we're going to be discussing that I feel confident many of our listeners will find not only informative, but educational. To help me with that today, we have attorney John Ryman here. John, thanks for joining us.

John: Thank you for inviting me. It is a pleasure to be here.

Brian: Well, John, before we even get into anything about this closed claim here, why don't you tell us a little bit about yourself, about your time here at SVMIC, some of your experience, and your background?

John: I am a lawyer. I'm licensed in Tennessee and have been licensed since 1994. I have been with State Volunteer for 14 years now.

Brian: Well, fantastic. I really appreciate you taking the time to come and discuss this case today, and John, just so our listeners will have the benefit of background of what we're going to be discussing, I want to take a couple of minutes to kind of give them a synopsis of what this case is exactly about. Mr. Smith was 72 and with a long history of various medical issues, including Coronary Artery Disease, Carotid Artery Stenosis, Chronic Obstructive Pulmonary Disease, and Peripheral Vascular Disease when he was referred to a Cardiovascular Surgeon, Dr. Jones. The referral to Dr. Jones was by Mr. Smith's Primary Care Physician for evaluation and possible Carotid Endarterectomy.

At his initial visit on May the 1st, 2010, Dr. Jones determined that surgery was appropriate, and he ordered a chest X-ray in preparation for the surgery. The chest X-ray was performed the following day and interpreted by the radiologist as showing an indistinct opacity in the left mid-lung. The radiologist recommended follow-up with a CT evaluation to confirm or exclude a pulmonary nodule. This report was faxed to Dr. Jones, who initiated the report, implying that he had reviewed it. The report was filed in the patient's chart without further action. Then on May the 3rd, Dr. Jones performed the endarterectomy surgery on Mr. Smith. The surgery went well, and the patient continued to do well through his six-month follow-up visit with Dr. Jones. The patient was not seen by Dr. Jones thereafter.

In April of 2011, Mr. Smith presented to his primary care physician with complaints of congestion, coughing, and left hip pain. An X-ray and a CT of the chest were ordered. These studies indicated that Mr. Smith had lung cancer in the area where the suspicious opacity was previously seen on the May 2010 X-ray. Mr. Smith underwent several months of treatment for metastatic lung cancer and died in early 2012. A lawsuit was filed by Mr. Smith's estate alleging wrongful death resulting from Dr. Jones' failure to follow up as recommended by the radiologist in 2010. John, as we take a look at this case, unfortunate outcome, very sad case here, what was the outcome of this case from a legal perspective?

John: Brian, as you might expect, the facts, in this case, are very much boiled down for the purposes of discussion for this podcast. But as is routine in our cases, we developed the facts for a defense counsel, and defense counsel then consulted with a number of qualified experts to find out how the medicine might be applied to those facts. After doing so, the doctor, in this case, wanted to settle, gave consent to settle, and we were able to negotiate a settlement in the case.

Brian: Like you said on the advice of defense counsel, once they really got into it, it became clear that a settlement probably was the best way to go, then.

John: It was, as is often the case, a collaborative effort between us, defense counsel, and the doctor.

Brian: Although the radiologist recommended follow-up as we were talking about earlier when I was going through the case, Dr. Jones didn't sound like you referred the patient for any further evaluations. Since this appears to be an oversight, at least it looks that way whenever you look at it from this perspective, was that defensible at all, or is that part of why it was settled, or was that able to be defended by the physician himself?

John: Well, that was, of course, one of the many factors that went into the determination to settle the case, but I think to understand the defensibility of the case, we have to back up and talk a little bit about what is required for a plaintiff to successfully maintain a cause of action against a physician for medical negligence. Let's talk about that for just a minute.

Brian: Please do, yes.

John: In order to maintain a cause of action against a physician, the plaintiff has to first prove what is the standard of care. Then, they would have to show that there was a deviation from the standard of care that the physician failed to comply with the standard of care, if you will. Then the next element is to show that there was an injury that would not have otherwise occurred. Then finally, they have to link that up and show that the deviation from the standard of care caused that injury.

As we look at the facts in this case, I think it is difficult to argue that the doctor should not have had some follow-up. It was recommended by the radiologist, and unless the doctor disagreed with that evaluation for some reason, then follow-up was indicated. However, defense counsel, after consulting with experts, determined that the progress of the disease was really no different. In other words, it would not have made a difference if the disease had been diagnosed earlier.

Brian: I got you.

John: We are missing one of the essential elements to maintain the cause of action against the doctor, and that is that there was an injury that would not otherwise have occurred. That is generally known as causation, and Brian, I'm boiling all of this down to a very simplified form-

Brian: Certainly.

John: ... but these are essentially the elements that are required. Without the causation element, the defense used that, really, as the foundation for a reasonable defense in this case.

Brian: I am assuming, if you have at least some defensibility, that's got to help whenever you're negotiating that settlement. Is that correct?

John: It would have been one of many factors that entered into the negotiations, of course.

Brian: One of the interesting parts of this is this really focuses on Dr. Jones' failure here. Was the radiologist named, and if he wasn't, then why was he not named in this part of the case?

John: The radiologist complied with the standard of care. He identified a suspicious image. He reported that to the doctor who ordered the study, and he recommended follow-up, so he did everything that was required to meet the standard of care.

Brian: He had done absolutely nothing wrong here. He can't go over to Dr. Jones and make him act upon what his interpretation of that reading was, so that makes sense.

John: It is, of course, Dr. Jones' judgment whether or not to follow up in this situation.

Brian: What could Dr. Jones have done that would have made this case easier to defend, if anything? Is there anything that Dr. Jones could have possibly done to make this go in his favor?

John: I think it is easy to see how this could have happened. We can all empathize with the situation where we sit down at the end of a long day with a stack of routine reports to review, and we go through them, and we're preparing for the following day, and it is easy to miss something that is perhaps unusual in that stack of routine reports. I think the takeaway from that is to keep in mind that nothing is routine, but it is certainly easy to see how it happened in this situation. The obvious answer is that Dr. Jones could have ordered follow-up. He could have ordered further studies. He could have referred the patient to a specialist. There are a number of things he might have done that would have been within the standard of care. He did not do any of those things.

It is also possible, I don't know that it happened in this case, but it happens in many cases, it is possible that Dr. Jones looked at the study, determined that in his judgment there was no need for follow-up and thus did not follow up. If that happens, then it is extremely important that not only the decision be documented, but the decision-making process be documented, and that will help explain why that decision was made sometime later when it is questioned.

Brian: Well, I think those are fantastic points of the documentation and the attention to detail. I'm certain that that will resonate with some of our listeners and hopefully will cause them to pause and take note of the fact that that could be the difference in being named in a suit and potentially not named in a suit. John, I can't thank you enough. Thanks for being here today to help us work through this and discuss this case.

John: It's my pleasure. Thank you.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect, with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast.

The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.