Legal Pearls: Is the Practitioner Liable When a Patient Fails to Show Up for a Test?

Dr F was a family medicine physician with a busy practice. A 17-year-old patient asked Dr F to fill out a college physical exam form. During the physical exam, a slight systolic murmur was noted.

Dr F’s office scheduled an echocardiogram, but the patient never showed up. Dr F’s office was notified that he did not keep his appointment, but no outreach was made to the patient, nor was anything documented in the patient’s record. While the patient continued to see Dr F for minor complaints and regular check-ups, no discussion of the missed echocardiogram or follow-up regarding the heart murmur were ever documented.

One morning, Dr F. was notified that the patient had died suddenly while playing football at school. He was 20 years old. An autopsy revealed hypertrophic cardiac myopathy. Soon after, he was served with papers notifying him that he was being sued by the young man’s parents.

Was Dr F at fault?

(Discussion on next page)

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.

This situation unfortunately happens more frequently than it should–a clinician orders a test for a patient and the patient fails to show up for the test. Who is responsible when a major health problem is missed?

Clinical Scenerio

Dr F was a family medicine physician with a busy practice. He saw patients of all ages, and in some cases was the healthcare provider for two generations of patients. One such patient was JJ, who was brought in by his father when he was a junior in high school. The young man was large for his age, and no longer wanted to go to his pediatrician.

When JJ was 17, he asked Dr F to fill out a physical exam form required by his high school. The physician documented a complete and normal physical exam in the patient’s record and noted that he had completed the form.

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Eight months later, JJ returned, this time asking Dr F to fill out a college physical exam form. The physician chatted with the patient about what college he would be attending, and what sports he was planning on playing. The physical exam was normal and was noted to be so on the form except for a question about a slight systolic murmur.

“It’s probably nothing,” said Dr F, “but let’s schedule you for an echocardiogram just to rule anything out.”

Dr F’s office scheduled an echocardiogram for the patient, but JJ never showed up. Dr F’s office was notified that JJ did not keep his appointment, but no outreach was made to the patient, nor was anything documented in the patient’s record.

JJ went to a local college and continued to see Dr F for minor complaints and regular check-ups. However, no discussion of the missed echocardiogram or follow-up regarding the heart murmur were ever documented.

One morning Dr F came into his office and noticed that his receptionist looked pale and upset. She told him that the office had just been notified that JJ had died suddenly while playing football at school. He was 20 years old. An autopsy revealed hypertrophic cardiac myopathy.

Dr F felt terrible. He looked back at the patient’s chart and realized that the echocardiogram ordered years earlier had never taken place, and that no follow-up had happened. He was not surprised when he was served with papers notifying him that he was being sued by the young man’s parents.

NEXT: The Legal Case

The Legal Case

Dr F met with the defense attorney provided by his malpractice insurance company. After reading all the records, and having them looked at by medical experts, the attorney had some questions for Dr F.

“I’m sure patients must miss appointments for tests fairly frequently,” said the attorney. “What is the policy in your office for what to do when this happens?”

Dr F looked blank. “We don’t have a policy, per se,” he finally answered.

“Do you get in touch with your patient to remind them? Do you reschedule the appointment? Do you count on the medical office you referred the patient to get in touch with him? Who does follow-up when a test doesn’t get taken?” asked the attorney.

“It depends,” Dr F stammered. “Sometimes we contact a patient, sometimes the place that they failed to show up does.” He paused. “I guess sometimes no one follows up,” he admitted.

“There’s no indication in the record that you explained to the patient why you were sending him for an echocardiogram, and why it was important. Do you remember telling him these things?” asked the attorney.

“Well, I remember telling him that we would schedule the echo to look into the slight systolic murmur, but I also told him that usually it’s nothing,” admitted the physician.

The medical experts who looked at the records faulted Dr F for not following up, for not documenting patient communication in the record, and for not explaining the importance of the test to the patient. The attorney told Dr F that they could go to trial and argue that the patient’s death was primarily the patient’s fault for not going to his scheduled test. “But it’s a hard sell in this kind of case,” the attorney told the physician. “There’s a lot of sympathy when a 20-year old college kid dies. The jury will want to blame someone, and you are the likely candidate.”

After several months of negotiations, Dr F decided to settle the case out of court and avoid the trial. The case settled for in the high range of what his malpractice insurance covered.

The Takeaway

There were several communication failures in the interaction with Dr F and his patient. He failed to document all information in the record. He failed to communicate the importance of the echocardiogram to the patient. He (and his office) failed to follow up on the missed appointment, even though they were aware of it.

Bottom Line—You can protect yourself and your patients by document all information regarding patient encounters in the medical record, creating a reminder system for the office to track ordered tests/image results, have a policy in place to follow up when results do not arrive and finally, and perhaps most important, engaging your patient in shared decision making so he/she feels as if they are part of the process. Explain the purpose of tests or images to the patient and always document this conversation in the patient’s record.