Patient responsibility in getting test results

Where does our liability end and the responsibility to follow up on abnormal test results (including Pap smears and mammograms) reside with our patients? For example, do we need to send certified letters to patients who don't follow up or to those who never get the recommended tests done in the first place?—Sandra Sabb, MD, Farmington Hills, Mich.

I will answer the question from a legal standpoint only and leave ethical principles to your good judgment. A practical way to analyze any such situation is to understand the argument that the plaintiff [the patient] will have to make and prove at trial to win a case for damages. The argument is: "Had I only known that test/treatment/procedure X, Y, or Z would have prevented me from being harmed, I would have obviously followed the doctor's recommendations."

You have to judge your patients individually. The "typical" educated U.S. citizen would have a hard time proving that she did not realize the consequences of not having a recommended screening Pap smear or mammogram. To prove your recommendation, a simple chart note should be adequate: "mammogram recommended," for instance. When in doubt that this is part of a patient's core knowledge because of culture, education, or language, then a chart note documenting that you clearly expressed the reasons for the recommendation and the risk of not having the test and that the patient understood is typically adequate. This is applicable to screening tests.

In other situations, a patient may not follow up on a test recommendation for a specific reason. Examples could be a chest CT to follow up an abnormal chest x-ray, a dermatology referral for a suspicious skin lesion, a colonoscopy for a heme-positive stool. There are other examples too numerous to mention.

The trial argument is the same "Had I only known...," but because of the higher likelihood of serious harm to the patient, I would recommend more than simply documenting in the chart that you made the recommendation. A follow-up phone call to see why the patient has not followed up on your recommended tests accompanied by chart documentation that you talked to the patient; the date and time you talked; and a notation that the patient understood the test you recommended, what you were trying to rule out, and the possible consequences of not having the test would typically be adequate. Were you unable to contact the patient in this fashion, a certified letter (return-receipt requested) clearly listing the preceding points is indicated.—John Y. Davenport, MD, JD (142-6)

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