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How to Deal With Another Doctor’s Error – and Minimize Liability

How to Deal With Another Doctor’s Error – and Minimize Liability
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Dr. MedLaw

Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.


Dr. MedLaw (click to view)

Dr. MedLaw

Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.

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Our expert provides legal guidance for the three scenarios you may be confronted with when dealing with another doctor’s error.

1. When you and the other doctor are independent

A new patient comes to see you and as you review their records and then examine them you realize that their prior physician, whom you do not know, has made a very serious error.

Now what?  You want to inform the patient but you also do not want to possibly embroil another doctor in a lawsuit.

The answer is a simple one: Not revealing a critical health fact – which a serious diagnostic or treatment error certainly is – violates your duty of care to your patient to keep them informed as to matters concerning their own health. As soon as you decide to specifically not reveal a relevant fact without a clinically valid reason to do so you have breached that duty.

If the patient is harmed as a result of your choice to deny them information about their health because you wanted to shield another doctor, you will be liable for that harm and can be sued for it in a case solely against you.

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 earlier and that denial of information then led to a worsening of the harm that the other doctor initiated. In fact, even if the plaintiff does not bring you into the case the defendant doctor – the doctor that you covered for – will do so by impleading you, demanding that you share in the judgment for your role in worsening the situation and thereby driving up the ultimate verdict or settlement that he or she is liable for.

Your liability in such situations would be based on the legal principle that you are responsible for what is reasonably foreseeable to be a result of your own conduct.  It is certainly reasonably foreseeable that a patient who does not know what is wrong with them because to reveal that would reveal the error is not going to be able to seek correction and may even seek care that actually exacerbates the condition they do not know that they have.

You may also keep the time available to sue you running if you actively conceal facts from your patient. If you practice in a jurisdiction with a Discovery Rule that allows the patient to sue when they know or should have known about the malpractice your interference with the patient finding out about the error will not just leave you liable for any damages they sustain thereby but will 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.

Further, even if you are in a jurisdiction where there is no Discovery Rule and the Statute of Limitations has already run out, you can still be sued for fraudulent concealment of the facts, which in most jurisdictions has a Statute of Limitations about three times longer than that for medical malpractice.

…and, of course, in all of these situations, because your conduct was entirely intentional rather than negligent, covering up for another doctor’s error is likely to get you not just sued but sued in a manner that your malpractice insurance will not cover and that your malpractice carrier will not pay to defend. You will have to bear the costs of your defense and any verdict or settlement against you on your own.

This all having been said, you can still do what you think is appropriate to minimize the risk a fellow physician will face as long as it does not impede informing the patient. For example, if the matter is not an emergency, you can contact the other doctor and ask them to deal with it. You must then, however, follow-up to make sure that it has been addressed because, since it is foreseeable that they may not do so, only that checking actually discharges your duty.

There is one serious caveat, though. You must do this without introducing any significant delay.  That is not just because it is good medical practice to let the patient know the facts as soon as possible but because, if there is a lawsuit, you will need to demonstrate that you did not stall the process long enough for harm from the original error to have increased in a clinically significant way. In a non-emergent setting two weeks is generally a reasonable time to allow the other doctor to speak to their patient and more than a month is too long.

If, after a reasonable period, you find out that the other doctor has not taken action then you must deal with the patient yourself.

You can, of course, use the opportunity put the matter in context if you feel that that is appropriate.  You can, for example, emphasize that there are alternative ways to diagnose or treat a medical issue. However, you cannot be vague or euphemistic – the patient must leave the discussion knowing about the error and its potential effect on their health and what steps they should now be taking.

Of course, you should document this fully, including any contact with the other doctor as well.

As you do so you also want to think ahead to protecting yourself from a retaliatory lawsuit or Board complaint by the other doctor and so, even if you disgusted by the egregiousness of the error or are thoroughly annoyed with the other doctor for not dealing with their own former patient, you need to use restraint and to not editorialize.  You want to be seen as a professional simply doing what was right, not as someone with a personal grudge.  Just say “On (date) Mr. Patient told me that he had not been contacted by Dr. A.  I therefore…” and then go on  to make the points that because you had detected a breach of the standard of care that you made sure that the patient was fully informed in a timely manner and now understood the issues.

2. When you are following the other doctor

What we have discussed 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.  This creates an additional hurdle when dealing with someone else’s previous mistake but even in this setting the same rules on timeliness, transparency and notification apply.

You should initially contact the physician who made the error and offer them the opportunity to issue an addendum to their own prior report and to contact the referring doctor.  If the other doctor agrees, or even asks to read the subsequent study to place it in context, then you can accept that but you must verify that they have actually done so within the time-frame to issue a report that your department requires. If they do not report the study promptly and/or do not reveal the prior error in their report and/or do not notify the referrer then you must do so.

If you will be doing the report then its content must reference the prior error. Simply issuing your own statement of the correct finding may set the future treatment onto the proper track but if you do it as though the other report never existed that will make you liable for concealment of the facts.  Further, since comparison to prior studies is part of the standard of care, pretending that you never saw what you actually did see will later look like an independent breach on your part and you will be liable if the failure to indicate that the process was not actually new but was, in fact, worsening, leads to a harm to the patient.  Your report therefore cannot just say “There is a 1.2 cm mass in the upper outer quadrant of the right breast” – it must say “A 1.2 cm mass is noted in the upper outer quadrant of the right breast.  In retrospect this is visualized on the study of (date).  At that time it measured 0.8 cm.”

You can, of course, include any mitigating matters in your report such as that the finding was less clear previously or that the rate of change is minimal and likely not clinically significant.

Your report should also include that you contacted the referring doctor and discussed the results with them.

3. When you and the other doctor share an association

Finally, there is the problem of detecting a serious error committed by 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 if there is a lawsuit? Will I be seen as a troublemaker by my hospital?

The simple answer remains that the patient’s right to know about their own health and your duty to convey it trump 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, as discussed above, you can bring the matter to the senior member of the group or to the administration or counsel of the hospital to offer them the chance to deal with it. Of course, you should use professional restraint when setting the matter out for them and should document what you did.

You should not be concerned over being the bearer of news that they do not want to hear.  In fact, their liability as partners or as employers is able to be mitigated, perhaps very significantly,  if they can act sooner. On the other hand, if you fail to bring the matter to their attention promptly then you will be liable to them for losses they suffer as a result of a delay that your concealment caused.

If, after you have informed them, they do nothing or they try to conceal the matter, you must speak to the patient.

**********

In summary, your loyalty is to your patient, not to the doctor who made an error, but you can balance the two interests.

Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.

1 Comment

  1. It is easiest to say to the patient “So and so is such a good doctor, this surprises me. He/ she must have been having a really busy or bad day. I’ll talk to him/her about this, but in the meantime this is what I suggest for your care”

    Reply

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