Liver Cancer

Legal Pearl: Failure to Follow-Up on Results in Death: Who is Responsible?

11/17/2022

  • The Background

    The patient presented to the emergency department (ED) of the VA Medical Center on July 28, 2015, with ongoing left flank pain. The ED physician (one of two working that evening), suspecting kidney stones, ordered a CT scan of the patient’s abdomen. The scan was emailed from the hospital to an offsite radiologist for interpretation. The radiologist reported kidney stones and a liver lesion, and he twice noted that further evaluation with ultrasound or contrast CT or MRI was recommended on a nonemergent basis. The radiologist also listed the diagnostic code “possible malignancy.” The radiologist’s report was emailed to the VA Medical Center at 12:30 am on July 29 and was available for both ED physicians to read. Despite this, neither looked at the test results, and the patient was discharged.

    Over the next almost 2 years, the patient returned to the VA for a variety of issues including kidney stones, sleep apnea, post-traumatic stress disorder, and back pain, yet no treating physician looked at the CT-scan result involving the liver lesion. Two years later, the patient had another CT-scan, which showed a liver lesion and possible metastatic lesions in the lung. In June 2017, the patient was diagnosed with Stage IV hepatocellular carcinoma that was untreatable. The patient died 2 months later. His widow sued the government, which runs the VA Medical Center.

    The Case

    During testimony, one of the ED physicians claimed that a nurse accessed the test results and may have communicated them to the patient. The court, however, noted that there was no proof that a nurse either accessed the results or contacted the patient, and in any event, the VA Medical Center’s own policies direct that it is the one who ordered the test who is responsible for following up on the results.

    The Decision

    Medical experts testified that had the patient been diagnosed 2 years earlier, the cancer would still have been treatable, and the patient could have lived. The court awarded the family $1.6 million in compensation.

    The Bottom Line

    If a physician orders a diagnostic test, follow up on it. That’s their responsibility.

    Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.