Malpractice Consult

By Lee J. Johnson, JD

No follow-up for indigent patients?

Q: I'm an internist working for a hospital-owned practice. I'm very uncomfortable with the way the practice handles referrals from the ER. If ER patients don't have a regular physician, their paperwork goes to the doctor on the "unattached" call list. That doctor is supposed to sign the chart, which then sits on a large pile in our office in case the patient makes an appointment after discharge. Lab or X-ray results also come to the doctor for signature before getting dumped on the stack.

The ER staff doesn't routinely inform patients if a lab or X-ray was abnormal. So if I were to get back a chest X-ray on an unattached patient that said, "suspicious area on right lobe, suggest repeat in three months, or clinical correlation," I think I should call the patient. I discussed this with our office manager. She said the practice's policy is not to call, because most of the patients have large outstanding bills.

Who is liable if that patient is diagnosed a year later with metastatic lung cancer? I wanted to contact our malpractice insurer for advice, but the office manager nixed the idea. She insists that even though hospital bylaws say it's my job to sign the paperwork, I have no responsibility to the patient until he shows up at my office. This seems unethical as well as legally risky. Any suggestions?

A: This scenario is fraught with liability, and there would be plenty of blame to share if a lawsuit were filed. For starters, the hospital, ER doctor, and ER staff clearly would be liable. So would the radiologist: He shouldn't rely on others to inform the patient of abnormal results.

Anyone who could have prevented this debacle waiting to happen may be subject to suit. So your practice clearly has liability: Someone should have been designated to send a postcard or make a phone call notifying the patient of the need for follow-up care. The argument that there's no obligation to contact a slow-paying patient will be laughed out of court. Besides, notifying a patient that treatment is needed isn't the same as being obligated to render treatment. Referring the patient to a free clinic is an acceptable alternative.

You should never sign a chart unless you actually rendered treatment. In this case, your signature could be interpreted to mean that you certified the reasonableness and validity of the diagnoses and treatments rendered in the ER, even though you weren't there.

What can you do? First, make the hospital and your practice administrator aware that their policies pose a danger to patients, as well as a potential legal risk. But do this carefully. If you put your concerns in writing, the practice might perceive you as a troublemaker. You might also give a plaintiff's attorney an opening if you record your concerns but don't follow through to see that the situation is fixed. So an earnest discussion should be your first step.

The hospital and practice should solicit the advice of a malpractice attorney, but this also should be handled carefully. Malpractice counsel is usually retained by the insurance carrier, and the hospital may not want the insurer to know about its ER policy, for fear that its premium could go up.

Also, an opinion from counsel that the policy should be changed could make the legal situation worse if the practice doesn't alter the policy. If a malpractice case is brought, the lawyer's opinion may even be used as evidence.

Certainly, the ER policy should be changed. The hospital must clarify the responsibility of the ER physicians. Both the hospital and its practice should implement a procedure for notification of all patients.

In the meantime, if the hospital won't cooperate, you should call patients on your own when further care is needed. Document your efforts.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. 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 magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2001;11:105.