Malpractice Consult

By Lee J. Johnson, JD

When a patient gets an "executive physical"

Answers to your questions

Q: Several local hospitals offer "executive physicals." Although the hospitals send the findings and any test results to the patient's primary physician for evaluation, I think this setup interferes with the physician-patient relationship. I'm also concerned that it could create liability for me. If a mishap occurred, who would be liable: me or the hospital?

A: Both of you could be. Whenever more than one physician is involved in the patient's care, such as in a referral or a consultation, the likelihood of a mishap increases. That's why there's a heightened need to make sure nothing falls through the cracks when you share information.

In claims for failure to diagnose, continuity of care is crucial to the defense. Suppose a patient who's had an "executive physical" with normal cardiac tests has a heart attack later. The legal question for you is whether the hospital provided sufficient information to free you from the responsibility to refer to a cardiologist, prescribe medications, or instruct the patient to take precautions about diet, exercise, etc.

The physicians who perform the hospital physical have a doctor-patient relationship that creates a duty to the patient, and potential liability for breach of that duty. If their tests are performed incorrectly or if their findings based on those tests are inaccurate, they have the liability. That liability is shared by the hospital that employs these physicians.

If a hospital physical is performed at the request of an employer, the hospital would presumably send the report to the employer, and not to you. In that situation, it's unlikely that you'd have liability.

Once the findings and reports are sent to your office, however, you have potential liability for failure to evaluate correctly, follow up with the patient, and recommend treatment if needed.

Suppose a lab report with an abnormal value is misplaced, and you've never seen it. The hospital assumes you'll follow up on the test, but no one calls or sends a separate letter. Or perhaps the test result was sent, but your office staff filed it before you could review it. This is a classic liability scenario created by lack of communication between health care providers.

Attorneys would search for evidence as to whether the letter was actually sent: certified return receipts, copies of the letter in the hospital record, copies in your record. You can be sure that if a copy shows up in your record as proof that you actually received it, you'll bear the brunt of the liability. In any case, it's likely that both you and the hospital would be named in a suit. Even if the report was never sent and even though you might be blameless, you'd probably have to give a deposition, at a minimum, before you could be dismissed from the case.

Your liability is similar when you're mailed screening tests from a local health fair regarding a patient you haven't seen for years. In that case, it's wise to review the results and pass them on to the patient. If any values are abnormal, you should call and ask him to make an appointment. If all results are within normal limits, you can write the patient a letter informing him of the results and telling him you're willing either to resume the relationship or to help him find another doctor. But it's unsafe simply to ignore the findings, even though you didn't order the tests.

Finally, you might ask yourself—or your patients—why they would go to the hospital instead of your office for this "executive physical." Perhaps the hospital's physical is less expensive, or the hospital has better diagnostic equipment. But the answer also could be the hospital's advertising campaign. If so, you might consider posting a sign in your office or running an ad stating that you also perform executive physicals.

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;20:68.