The Lawsuit

Two years after being diagnosed with lung cancer (and five years since the initial emergency department visit), the patient contacted a medical malpractice law firm. A lawsuit was filed against the hospital where the patient was originally seen. The complaint alleged that improper follow-up on the lung mass occurred, allowing it to progress to an inoperable tumor.

In an unusual twist, the physician who originally saw the patient had died prior to the discovery of the lung cancer. 

After the lawsuit was filed, the defense filed a motion for summary judgment based on the statute of limitations. The state in which this happened has a three-year limit from the time a negligent act occurs. If the negligence is not discovered within three years, the plaintiff has an additional year to file the lawsuit.

In this instance, the lawsuit was filed two years after the negligence was discovered, therefore falling outside the statute of limitations. The plaintiffs attempted to argue that they should be given additional time because the physician was an independent contractor and not directly employed by the hospital. The judge dismissed the case. The end of his opinion is shown in Figure 3.

Figure 3: Excerpt from the Judge’s Opinion

This case highlights the medicolegal risk associated with incidental findings. This is a common reason for malpractice lawsuits against emergency and urgent care physicians. We are often focused solely on emergency or acute disease processes and can overlook other issues. 

In this case, it seems that the error was simply a failure to identify an incidental finding that needed follow-up. In other malpractice cases, incidental findings are often appropriately identified but there is a failure of adequate communication to the patient or their primary care doctor. 

The Lesson

As with all errors in medicine, there are opportunities to improve our individual performances as physicians and opportunities to improve the system in which we work. Direct communication with patients at the bedside is important for incidental findings, including a discussion of the possible consequences if the identified issue is not addressed in the appropriate time frame. Discharge papers that include comments about the finding and the recommended follow-up are also helpful. When possible, sending a message to the patient’s PCP can help facilitate the necessary next steps. 

There are also measures that health care systems can take in building more robust systems that empower both physicians and patients. Having standard prewritten discharge instructions about incidental findings can be helpful. Institutions that have an ED follow-up nurse or other clinician can help ensure patients do not lose contact with the health system, especially after ED visits that occur in the middle of the night, weekends, or holidays, when communication is often fragmented. Finally, technology-based solutions such as automated image processing and text recognition can identify findings that may have eluded initial screening.