If a colleague is careless

November 3, 2006

Malpractice Alert

I began my response with the story of an elderly man who was sitting by the side of a swimming pool at a European resort. An American walked up to the man and asked if the water was warm. The man raised his head and answered, "luke vorm." "Great," exclaimed the American, who threw off his robe and dove into the deep end of the pool. A moment later, he emerged with lips quivering. "I thought you said the water was lukewarm," he sputtered. The elderly man raised his head once more and answered, "Luked vorm to me."

Observation can be misleading, and the failure to send tissue for pathologic examination, regardless of how benign it "looks" is an invitation to legal-and, more important, medical-disaster. As we are all aware, there are benign-appearing lesions that turn out to be malignant. There needs to be only a small area of malignancy to make a seemingly benign lesion into a time bomb. And while some of these will be missed simply because the sample didn't include the malignant tissue, or it wasn't on the slide(s) examined, these malignant lesions will all be missed if no one looks.

A physician removing a lesion from a patient owes a duty to determine if there's a malignancy, or some other problem like inflammation, that can't be seen by the naked eye. This is the standard of care that physicians have set for themselves, and to which you must adhere unless such services are unavailable. A radiologist who fails to send a lesion for pathologic examination breaches that duty. While he may get away with it most of the time, when an injury occurs because a malignancy remains occult until it has progressed, then the radiologist is likely to be held liable.

And if you had referred the patient to the radiologist and you later learned that he hadn't sent the specimen for examination, from that point on, you knew or should have known that the radiologist doesn't meet the standard of care in this area. If you continue to refer patients to this radiologist, then you may be held equally negligent-and equally liable. It would be better to refer patients to someone else or to at least demand that each of your patients' lesions be sent for pathologic examination, and then follow up to make sure it was done and to learn the results.

Always err on the side of caution, and document your actions and concerns in the patient's chart. If problems occur afterward, good documentation means you're more likely to become a witness than a defendant.

The author is an internist and a health law attorney in Bala Cynwyd, PA. He can be reached by e-mail at eshore@shoremedlaw.com
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This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to 201-690-5420, or e-mail it to memalp@advanstar.com
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