2.1.4 The Missed Result
Philip C. H�bert, MD, PhD, FCFPC
- To review current standards for interdisciplinary management of patient results
- To suggest best management for disclosure of lapses in patient care
A hospital-based obstetrician-gynecologist does a Pap smear on a 48-year-old patient as part of a "well woman check." Shortly after doing the Pap smear and before the report on it came back, the gynecologist leaves the country for an extended period to work overseas. When he returns 12 months later, he sees the patient again for her annual visit in his private office and is surprised to discover that she has an advanced form of cervical cancer. He realizes that last year's Pap report is not in her file. Calling the lab, he is told, to his great dismay, that the smear showed evidence of pre-cancerous cells. Having no replacement for him when he had left a year ago, the hospital had closed the clinic in which he had worked. Unfortunately, no arrangements were made to handle his reports. As a consequence, the Pap smear report for the patient was unseen by anyone, and she was not told about her medical condition nor did she receive treatment for it.
- What ought the clinician to do or say, if anything, to the patient?
- How can a clinician reduce the risk of lawsuits in such a situation?
- When should a clinician disclose error?
- How should a clinician disclose error?
Further Discussion of Case
The gynecologist must be honest with the patient about the missed lab report and what the abnormal result and the delay in dealing with it likely meant. A lawsuit might result, but, quite frankly, this should be the furthest thing from his mind. His mind should be turned to the question "How can I ensure this patient gets the best care possible without further delays?" It is doubly bad to compound the original mistake by attempting to conceal it. If the patient is not told and finds out later, this might result in anger over a perceived cover-up.
A case akin to this one did come to trial.14 The first trial judge was tough. The "standard of care" for following up on an abnormal test result as in this case, he opined, does not involve "medical skill or expertise." Thus, this oversight could not be a case of "error of judgment...". Having an appropriate system in place fell within the ambit of [the gynecologist's] personal professional responsibility." The judge found no direct hospital liability, ruling that the failure was all the physician's.
A higher Appeals Court thought that this standard was "too high" in requiring the doctor to "ensure" such a system was in place. Instead, the standard should be "a duty upon the physician to see to it that there is a reasonably effective 'follow-up' system in place" as well as "a responsibility on hospitals to see to it that adequate procedures are in place to 'ensure' (but not guarantee) patient safety." "Where a patient in a hospital is treated by more than one specialty, the hospital owes a duty to ensure that proper coordination occurs and that the treatment program it offers operates as a unified and cohesive whole." The court found liability to be shared by the gynecologist and the hospital.
b��"We must not condemn as negligence that which is only a misadventure." This quotation from Lord Denning is quoted in Reference 9 (p. 212).
c��By a 2009 amendment to the Ontario Evidence Act, statements of apology for harmful acts cannot be used against the individual involved. In this Act, "apology" means "an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate." The proposed act, which will almost certainly be passed in 2009 and is similar to existent provincial legislation elsewhere, goes on to state, "an apology made by or on behalf of a person in connection with any matter (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, (b) does not constitute [a confirmation of a cause of action or acknowledgment of a claim] in relation to that matter ... etc."
Lapses in patient care may arise out of failures in interdisciplinary care. To prevent such lapses requires greater attention to multidisciplinary and systems management of patient data and results. Where lapses do occur, appropriate disclosure practices can minimize medico-legal proceedings.
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