Marc Mandell, J.D.
MANAGED CARE March 1997. ©1997 MediMedia USA

More often than you'd think, says this attorney, malpractice cases turn on the question of whether test results were properly communicated to patients. Here's where danger lies — and how to protect yourself.

Marc Mandell, J.D.

I'll never forget the response a physician client of mine gave one day when I asked him if he had told a patient the results of a test that had been performed at a certain hospital.

"That's the hospital's problem," he said.

He was wrong. Most courts have ruled that a hospital has no independent duty to inform a patient about the results of a test administered at the request of the treating physician. A recent lawsuit illustrates the problems physicians can face if they rely on the hospital to inform patients about test results.

The suit involved a woman who was at full-term pregnancy when she was brought to a hospital emergency department following a two-car collision. The woman was driving at the time of the accident and suffered direct trauma to her abdomen when she struck the steering wheel. Her obstetrician, who had staff privileges at the hospital, instructed the emergency room staff to perform a general examination. When he arrived in the ED, the obstetrician personally gave the patient a gynecological exam. The patient was then transferred to another area of the hospital for fetal monitoring.

The nurse who was monitoring the fetal heart tones called the obstetrician at home and told him that the results were "equivocal" and that the patient continued to complain of numbness to her abdomen. The obstetrician instructed the nurse to send the patient home. After the nurse expressed her concern about the test results, the obstetrician agreed to have the patient return for additional monitoring. Neither the patient nor her husband were told of the "equivocal" results.

Where duty lies

When the patient returned to the hospital the following morning, stress tests indicated fetal distress, and a cesarean section was performed. A male infant suffering from asphyxia was delivered. A lawsuit was later brought against the hospital and the obstetrician.

The suit against the hospital charged that the hospital had a duty to inform the patient of the "equivocal" nature of the fetal monitoring results. This contention was rejected by the trial judge and by an appellate court, and the suit against the hospital was dismissed.

The appellate court noted that "although the hospital did the monitoring and observed equivocal results, it did so at the direction of the patient's personal physician." It added: "The results and concerns were relayed to the treating physician, and the medical decision as to the significance of the test was his to make." Therefore, ruled the court, "any duty to inform the patient of the test results would have been that of her privately retained physician, not the hospital or its personnel."

This case has important implications for treating physicians. When the patient's attorney plans legal action based on an alleged failure to reveal test results, the chief target is likely to be the physician, not the hospital. To prevail in a suit based on a doctor's failure to disclose test results, a plaintiff must demonstrate that the physician didn't inform the patient of a material fact relating to treatment, that the patient consented to treatment without learning this fact, that knowing this fact a reasonably prudent patient might have declined the treatment, and that the treatment proximately caused injury to the patient.

Since the legal standards are vague, physicians must use their best judgment in deciding what test results to reveal to patients. Courts have made exceptions to the general rule of disclosure for patients who are in emergency situations, or when the likely emotional reaction of a patient to disclosure would outweigh any benefits. But in the current litigious climate, it's often better to reveal the results of tests ordered and, when possible, personally to discuss the meaning of the test results with your patient.

A note about discussing test results may not seem important at the time, but it will protect you years down the road. Above all, don't rely on the hospital to tell the patient about test results. It is your responsibility, and if a lawsuit arises, the hospital's attorney will look after the hospital's interests, not yours. He or she will insist that the hospital had no duty to tell the patient about the test results. All blame will be passed to you as treating physician.

When the hospital and the treating physician(s) are sued jointly, don't assume that the hospital's attorney will consider you an ally. If the hospital and the treating doctor(s) have different insurance carriers, the hospital lawyer will have no qualms about blaming you for any injuries suffered by the patient. Above all, you must protect yourself.

Record and refer

The alleged failure of the treating physician to record test results is often used by the patient's attorney as a key to the courthouse. When a former patient asks an attorney to sue the treating physician, the attorney will focus on whether test results were properly recorded or referred. A failure to record a test result may not have had a significant role in the patient's treatment or outcome, but it can still help lead a jury to the conclusion that the physician was careless or unprofessional. In one recent case, the failure to record the results of an electrocardiogram gave a patient's attorney the opportunity to file suit against two surgeons, an anesthesiologist and a hospital.

Events leading to the lawsuit began when a 50-year-old patient visited a physician to complain of pain, and the doctor diagnosed gall bladder disease. Surgery was scheduled at a hospital to remove the patient's gall bladder. In order to perform surgery at the hospital, the physician was required to obtain a second surgeon to assist and consult. A second surgeon agreed to participate.

On the eve of surgery, the patient's physician ordered an ECG. The next morning, the consulting surgeon visited the patient and noted that the results of the ECG were not in the chart. Neither the surgeons nor the anesthesiologist reviewed the ECG, which was abnormal, before surgery.

While under anesthesia for the removal of his gall bladder, the patient experienced an irregular pulse and blood pressure. The patient died of a heart attack shortly afterward.

A lawsuit was filed against the two surgeons, the anesthesiologist and the hospital. The chief allegations against the surgeons were that they failed to record or review the ECG and that they failed to refer the patient to a cardiologist in light of the abnormal ECG.

Before trial, the anesthesiologist and his group settled the case for $100,000. Trial proceeded against the hospital and the two surgeons. At trial, the first surgeon testified that he ordered the test, but stated that he was not qualified to read the test. If the ECG suggested postponement of the surgery, then he expected to be notified of this fact by the "read-er of the month" — one of several cardiologists employed by the hospital on a monthly rotating basis. He also stated that he depended on the anesthesiologist to notify him if there was an abnormality.

Two prominent professors of medicine testified as expert witnesses for the plaintiff. One argued that the failure to review the ECG violated the standard of care and that "attending physicians can not rely on the anesthesiologist in this regard." The second expert witness testified that "the standard of care would have required the first surgeon to refer the patient to a cardiologist in light of the abnormal ECG."

Before the case reached the jury, the judge dismissed the allegations against the hospital. A jury rendered a verdict in favor of the two surgeons, but that was set aside by the appellate court because at least one of the jurors knew about the settlement involving the anesthesiologist. A new trial was ordered, and the case was then resolved between the parties.

Don't be an easy target

Regardless of its ultimate outcome, the case offers a number of lessons for practicing physicians. When you order a test, make sure that the results are seen by the physicians who need the information. In the case above, the two surgeons have made themselves easy targets for the patient's attorney. During cross-examination, the patient's attorney might thunder at them:

"Isn't it a fact that you never gave the results to a cardiologist to review?"

Answer: "Correct."

"And doctor, isn't it a fact that you are not trained as a cardiologist?"

Gulp. "Correct."

This is the type of exchange that loses cases for defendant/doctors.

It is unwise to assume that someone else will properly review and record tests a physician has ordered. If a doctor orders a test, he or she should ensure that it is performed, and that its results are appropriately conveyed to the patient, that they are seen by the other physicians who need the information and can interpret the results, and that they are properly recorded.

By taking these steps, you can dissuade most attorneys from filing a malpractice suit against you. Lawyers don't take cases on a contingency basis when they have little chance of success — especially in medical malpractice, where out-of-pocket expenses are exorbitant. There is no reason for you to create work for lawyers.

The author is a Norwich, Conn.-based attorney who often defends physicians in malpractice cases.

What Malpractice Plaintiffs Must Show

Failing to report test results to patients can create a dangerous opening for the litigious. But winning a malpractice judgment is no cakewalk for the plaintiff, who must demonstrate that these four conditions apply:

  1. The physician failed to inform the patient of a material fact relating to treatment.
  2. The patient consented to treatment without being aware of that fact.
  3. A reasonably prudent patient under similar circumstances would not have consented, given such information.
  4. The treatment in question proximately caused injury to the patient.

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