Malpractice Case: Being Passive About Referral Treatment Can Create Legal Risk

Gordon T. Ownby


October 05, 2020

The word "passive" derives from the Latin passivus, meaning capable of suffering. An opposing attorney will leap at an opportunity to paint a picture of a passive physician.

A 38-year-old trained teacher and foreign mission worker visited a primary care physician, Dr FP, for a physical, examination of moles on his calf and scalp, and vasectomy referral. Dr FP's physical exam revealed a melanocytic nevus on the patient's right calf and a mass on his head. The plan was for routine blood work, a urology referral for the vasectomy, referral to a general surgeon for the head mass, and a 2-week return for removal of the nevus.

At the return visit, the patient signed a consent for "excision biopsy of highly suspicious nevus R/O melanoma." Dr FP noted that he excised a "good margin of normal skin tissue." The diagnosis on the specimen was melanoma, 1.4 mm thick, extending to within 1 mm of the peripheral edge of the specimen, stage IIa.

Dr FP later said he informed the patient of the melanoma and referred him to a dermatologist for a decision on further treatment, including a possible wider excision. Dr FP gave the patient a copy of the pathology report to give directly to the dermatologist and also gave him a handout on melanoma. Dr FP's chart that day described the patient's melanoma as "post excision."

Medscape Editor's Key Notes:

• Make sure that test results are properly transferred to specialists during referrals and confirm receipt.

• Don't rely on a patient's recollection of treatment by a specialist.

• Communicate directly with specialists to confirm treatment course, particularly in the case of high-risk patients.

The patient went to the clinic of the referred dermatologist, but instead of seeing that physician, the patient participated in a teledermatology consult. Dr FP's office received word that the telehealth consult was to take place, and a note from Dr FP's staff said that the patient "will hand carry melanoma report to Derm."

The actual telehealth consult did not involve direct interaction between the patient and the remote dermatologist. Instead, a clinic PA took photos of various moles and nevi of the patient and transmitted the images to the remote MD for consideration. As it turned out, the PA did not take a photo of the excision area, and the remote MD was not advised of the melanoma diagnosis. The remote MD did not receive or review Dr FP's referral, which included the melanoma diagnosis, even though it was within the clinic's records.

The remote dermatologist assessed a neoplasm on the abdomen and recommended a shave biopsy; other areas looked like benign melanocytic nevi. The remote dermatologist's plan was for the PA to educate the patient on what to look for with suspicious skin growths. He recommended to the PA a 6-month follow-up for the patient.


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