Mr. N went on to testify that had he been notified, he would have had Ms. T come to his office or sent her to the emergency department of the local hospital without delay to begin anticoagulant therapy. This would, in all likelihood, have saved her life, he stated.

When Mr. N’s own attorney questioned him, he was asked  why the fax went unnoticed.

“We don’t treat faxes as emergency situations,” the NP replied. “We don’t expect to get this sort of information in a fax. Most of our faxes are ads, menus, and junk mail, so our fax box is sometimes not checked as frequently as it should be.”


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Dr. C’s defense attorney then put her on the stand. She testified that she’d had problems with the voice mail at Mr. N’s HMO in the past, that she had tried to speak to a receptionist, that she had been unable to leave a voice-mail message, and that finally, she decided to fax.

“After being on hold for so long—and having had this experience before—I lost faith that I would be able to get in touch with Mr. N at that point. Faxing the information seemed like the best option,” she explained.

On cross-examination, the plaintiffs’ lawyer forced Dr. C to admit that she hadn’t called Mr. N to confirm the fax was received nor had she tried to reach Ms. T directly, even though she had the patient’s contact information.

During the closing statements, Dr. C’s attorney argued that even if his client should have tried harder to reach Mr. N, her failure did not result in Ms. T’s death. In any event, the attorney added, the NP should have been looking for the report. 

Mr. N’s attorney argued that Dr. C should never have faxed such vital information; no one would expect emergency “life or death” information to be in a fax in-tray.

Finding Dr. C to be 70% at fault and Mr. N to be 30% at fault, the jury awarded Ms. T’s family $1.8 million.

Legal background

It is very common for co-defendants to point the finger at each other during a trial. In this case, the jury was right to hold both of them responsible. Mr. N should have followed up and looked for the results. Dr. C should have made every attempt to convey information about a life-threatening situation. If she could not contact Mr. N, Dr. C should have called the patient directly and sent her straight to the hospital.

Protecting yourself

There is no substitute for direct communication. Yes, it is frustrating to be put on hold or to be unable to get to voice mail, but the right thing to do would be to try again, speak to someone else and explain the emergency, or call the patient directly and have her report to the nearest ED. Had Dr. C done any of these things, tragedy might have been avoided.

Similarly, Mr. N should have been on the lookout for results of tests he had ordered and should have been more diligent about checking faxes. Even if you can’t check the fax box yourself, it is essential to have someone go through it regularly to check for important but unexpected communications.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y