by Louise Walling and Laura Hale Brockway, ELS
A 52-year-old man had been treated for chronic hepatitis C and cirrhosis starting in 1998. Since he had an increased risk of liver cancer, the patient’s gastroenterologist (Gastroenterologist A) recommended monitoring, including semi-annual alpha fetoprotein (AFP) testing and annual liver ultrasounds. The patient did not follow these recommendations exactly, but did have AFP tests in 2002 and 2004.
Gastroenterologist A documented his plan: “six months alpha fetoprotein and annual abdominal ultrasound.” He copied the patient’s primary care physician on this plan.
Gastroenterologist A retired from the group, so when the patient returned in July 2006, he was seen by Gastroenterologist B. When the patient called to make his appointment, he asked what lab work he needed to complete before the appointment. He was told he needed lab work including an AFP test. An ultrasound done on July 5 revealed evidence of cirrhosis and splenomegaly, but no obvious liver lesion.
On July 11, Gastroenterologist B performed an EGD that revealed esophageal varices and gastritis. A colonoscopy completed that day showed a 4 mm polyp in the ascending colon. Gastroenterologist B removed the polyp with a biopsy forceps. His recommendations were to repeat the colonoscopy in five years.
Gastroenterologist B copied the patient’s primary care physician about the office visit and test results. However, he did not note his plan for the patient to obtain an annual abdominal ultrasound or for an AFP test every 6 months. Gastroenterologist B later testified that he told the patient to continue to get these tests, but he did not document this plan. The physician stated that if he wanted the patient to stop this routine, he would have documented that.
The patient never returned to Gastroenterologist B or any other physician at the practice. He continued seeing his primary care physician. There is no documentation in his record asking if the patient was routinely following up with a gastroenterologist.
In January 2010, the patient came to the emergency department (ED) due to acute anemia secondary to upper GI bleeding. An AFP test revealed an elevated reading at 184. A CT and MRI showed Stage IIIC liver cancer extending into the portal vein. Resection was not an option.
The patient had a very poor response to chemotherapy. The disease progressed and he died in July 2010.
Lawsuits were filed against Gastroenterologist B and his group practice. The plaintiffs claimed Gastroenterologist B’s failure to order the required tests was negligence. The group practice was alleged to be negligent for not sending follow-up letters to advise the patient that he needed repeat studies. They also claimed that when the patient called in for prescription refills, staff approved the refills without requiring him to come to the office or reminding
him about the repeat studies. The patient’s primary care physician was also sued.
The plaintiff’s expert, a gastroenterologist, stated that the patient’s condition required AFP level testing and liver ultrasound at least annually. Failure to follow up with the patient about this testing was a breach in the standard of care. An oncologist who reviewed this case for the plaintiffs stated that had the patient been afforded timely diagnosis and treatment — more likely than not — his cancer would have been cured with appropriate treatment.
Defense experts who reviewed this case had mixed opinions. They all agreed that the patient, the primary care physician, and Gastroenterologist B all bore some responsibility for the outcome. However, one expert stated that a reasonable gastroenterologist would have sent a letter reminding the patient of the need to follow up a year after his last visit. It was also problematic that Gastroenterologist B did not document his recommendation for the patient to continue the annual tests or put this in the letter to the primary care physician.
This case was settled on behalf of the gastroenterologist and his group practice. The case against the primary care physician was dropped.
Risk management considerations
The Texas Medical Board requires an adequate medical record contain a written plan of care that includes:
- treatments and medications, specifying the amount,
- frequency, number of refills and dosage;
- referrals and consultations;
- patient/family education; and
- specific instructions for follow up.
Documenting evidence of the patient’s continuity of care is an important component of risk management and supports the physician if the patient states he was not told to return.
Implementing the appointment reminder in the practice’s scheduling software is one method to track future appointments. This can be used when a patient hesitates to schedule the next annual visit. The patient can be sent a postcard or letter well in advance, or a phone call can be made. This gives ample time to communicate specific lab work or other tests required prior to the visit. It can be helpful to prevent a patient from “falling through the cracks” and can prove helpful in defense of an allegation of failure to diagnose and treat in a timely manner.
Setting up a tracking system for tests and referrals, either with a paper log or implementing a practice’s tracking feature in the electronic medical record is another vital component of risk management. If test results are not received within a reasonable timeframe, contacting the patient with a follow-up phone call and corresponding documentation in the medical record demonstrates your effort to minimize risk. The caller should also date and initial his/her attempt. If the patient indicates that he is refusing to follow through with the test, record the patient’s noncompliance. This may establish that the physician was not negligent in follow up and that the patient contributed to the poor outcome.