Legal background
Had this case gone to trial, the issue of contributory negligence likely would have come up. Contributory negligence becomes an issue when the injured party's failure to exercise due care contributes to the injury. An example of this in a “failure to diagnose” case would be a patient's developing cancer after failing to follow through on his or her clinician's advice to get a cancer screening. If sued, the clinician can argue that the patient's failure to follow direction contributed to the injury.
It is unclear whether the dermatologist told Mr. E that the mole needed to be removed. If he did, Mr. E might have been found negligent for not mentioning the recommendation to Mr. L or his PCP or for not following up with the dermatologist. While this would not exonerate the clinicians, the amount of a jury award might have been reduced. Since the clinicians decided to avoid a trial and settle in this case, the issue of what Mr. E's responsibility should have been never came up.
Protecting yourself
Several mistakes were made in this case. Mr. L should have noted in the file that he was referring his patient to a dermatologist. He also should have documented the mole that he found on the patient's back. Had this information been in Mr. E's file, Mr. L would have been more likely to follow up with Mr. E and ask about his appointment with the dermatologist.
The dermatologist made a mistake by not calling the patient's PCP about the need to have the mole removed. Letters are fine to thank a clinician for a recommendation or to pass along nonessential information, but they cannot be relied on to convey information that needs to be acted on immediately. A phone call to the PCP would have been a better choice. The dermatologist should have explained the situation clearly to Mr. E as well so that he understood the mole was a problem.
Sadly, this patient went undiagnosed because of assumptions. Mr. L assumed that the dermatologist took care of the mole, and the dermatologist assumed that the PCP was handling it. No one verified who was actually treating the patient. Documentation and follow-up are essential to avoid poor patient outcomes and prevent malpractice lawsuits.
Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.