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Failure to Diagnose

Probably the single most frequently recurring allegation in every specialty, "failure to diagnose" is an especially prevalent source of claims against primary-care physicians.

For example, in pediatric claims failures to diagnose meningitis or hypoxic sequelae result in significant losses. In adult patients, failure to diagnose breast, lung, colon or other cancers, as well as failure to timely diagnose myocardial infarction are common allegations. Failure to recognize fetal distress and failure to assess a pregnancy as high risk continue to plague obstetricians. Physicians treating fractures and traumatic injuries show significant losses from allegations concerning failure to diagnose compartment syndrome, as well as failure to diagnose cervical spine fracture. Failure to diagnose any injury or illness which results in death, disability or deformity carries a high loss potential regardless of specialty.

Several underlying factors contribute to these allegations. Failure to elicit complete information from a patient history, failure to fully document findings and failure to assure adequate follow-up are the real culprits behind most of these claims.

Simply arriving at a wrong but reasonable conclusion is generally not the source of liability. For example, after reviewing all the available findings, there may be two or more plausible and reasonable explanations for the patient's condition. It is the failure to demonstrate, in the patient record, that reasonable diagnostic efforts were undertaken and reasonable conclusions were drawn that results in many losses. As always, in the law, the key word is "reasonable" not "omniscient."

Faced with a "failure to diagnose" claim, many physicians find the patient record to be more foe than friend. Remember, sketchy documentation may give the appearance of an incomplete examination or inadequate plan. The patient's chart should demonstrate your "reasonable" efforts five years later, when you may have no independent recollection of the patient's care or treatment.

Another high-risk area for potential "failure to diagnose" allegations is the area of patient follow-up. Once a treating physician receives a report from a laboratory or surgical pathologist that results of tests or biopsies are suspicious or clearly indicate a problem, he or she will likely be held liable if the patient is not contacted to arrange for further tests, treatment or consultation. Such contact must be pursued and documented. Merely accomplishing contact may not be enough, even if you believe the patient was fully informed of the seriousness of the situation. Recent jury decisions have held physicians responsible for tracking these patients to determine if their recommendations are being followed. Documenting further phone calls, postcard reminders or even certified, return-receipt-requested letters will demonstrate a good-faith effort on the part of the physician to "drive home" the importance of needed follow-up.

In summary, many failure to diagnose claims are preventable, and more are defensible, if proper attention is given to assessment, documentation and follow-up.