Legal Pearls: Failure to Follow Up After a Referral
In this case, the PCP did not follow up with a patient despite having ample opportunity to do so. However, the case against him ultimately failed due to a technicality. Although the physician got lucky, he had to deal with the experience of being sued. What might he have done to prevent this?
Clinical Scenerio
The primary care physician had been running his own practice for 25 years. One of his patients was a man aged 56 years, whom the physician had been seeing for some time for routine matters—colds, coughs, and minor symptoms—and to manage his diabetes, hypertension, and morbid obesity. In December 2010, the patient came in reporting abnormal urination and back pain. The PCP ordered a prostate-specific antigen (PSA) test, the results of which were 10.96 ng/mL. Based on the results, the physician referred the patient to a urologist.
The urologist met with the patient and explained that an elevated PSA level could indicate prostate cancer. The urologist recommended a biopsy, but the patient asked to have a repeated PSA test instead. The second PSA test showed a level of 12 ng/mL. “I’m afraid you really need to have a biopsy,” the physician told the patient.
The next month, in January 2011, a biopsy was performed. “Good news,” the urologist told the patient when the results came back. “The biopsy results were benign. However, it’s really important that we test your PSA level regularly. I’d like you to come back in 3 months for a follow-up PSA test.” The patient agreed and left but never returned to the urologist.
In April 2011, the urologist sent a letter to the patient’s primary care provider. The letter stated, “This is a follow-up on the patient. He had a prostate ultrasound and biopsy on January 12, 2011, and the results were negative. Enclosed is a copy of the report. I have had trouble contacting the patient due to his being out of town a lot. When I hear from him, I will let you know.”
The PCP skimmed the note and put it in the patient’s folder. Over the next several years, the patient continued to see the PCP routinely for treatment of his diabetes, hypertension, and hypercholesterolemia, as well as for a skin infection and swelling of the patient’s hand. Blood work was often done, but the patient’s PSA level was not tested.
In April 2014, three years after the PCP got the letter from the urologist, the patient came to see him with left flank pain and hematuria. He was admitted to the hospital, where a PSA test was performed, the results of which were 2400 ng/mL. The patient was diagnosed with advanced prostate cancer that had metastasized to his bones and kidneys.
The patient died a little over a year later. A year after his death, his adult children filed a malpractice lawsuit against the PCP.
The Legal Case
The PCP met with the defense attorney provided by his insurance company. The attorney explained to the physician that he was being sued for wrongful death based on medical malpractice.
“Specifically,” said the attorney, “the complaint says that you owed the patient the duty to properly advise and treat him at the early stage of his prostate cancer. What the case will hinge on is at what point he could still have possibly been treated successfully."
The case dragged on. Over a year was spent with discovery and depositions, including a medical expert of the plaintiff, who testified that the patient would more likely than not have died had his prostate cancer been diagnosed after December 2011.
After that deposition, the defense attorney called the PCP in to update him.
“I think we’ve caught a break,” said the attorney. “The plaintiff’s expert physician testified that the cancer would have to have been diagnosed prior to December 2011 in order for the patient to have had a chance at survival. Our state has a 3-year statute of limitations on malpractice cases. The statute begins to run when the injury or act of negligence allegedly took place, not when it was discovered. In this case, the time will start running from when the patient no longer had a chance of survival, December 2011. The plaintiffs didn’t file this case until 2016. I believe they missed the window of opportunity to sue.”
The judge agreed, and dismissed the case, much to the relief of the PCP and the disappointment of the plaintiffs.
This case was won on a technicality. Cases are dismissed on technicalities all the time:, such as filing after the statute of limitations has run out, not filing the case properly, and not having an expert certify a medical malpractice case in states that require it. These are but a few of the numerous reasons why a case can fail before it ever gets to trial. While it sometimes seems unfair, the rules are in place for a reason—mainly to limit the number of unnecessary lawsuits.
The Takeaway
While the PCP was not found liable in this case, he still had to go through the unpleasant experience of being sued. In all likelihood, he could have prevented this from happening in the first place by doing one of several things: He could have (and should have) been regularly testing the patient’s PSA level, especially knowing that there had been an issue. He could have contacted the urologist to find out whether the urologist was doing the PSA testing. He could have discussed with the patient (and, very importantly, noted in the patient’s medical record) whether the PSA level was being monitored by the urologist and the importance of the continued testing.
Instead, after referring the patient to the urologist in 2011, he never discussed the issue with the patient, never had the patient’s PSA retested, and never wrote anything relating to the prostate issue in the medical record until 3 years later when the patient presented with an obvious problem.
Bottom Line—Simply referring a patient to a specialist does not absolve a clinician from following up with the patient, the specialist, or both. While unfortunately the end result would not likely have changed for the patient, it doesn’t alter the fact that the PCP should have taken some action.