The word "passive" derives from the Latin passivus, capable of suffering. From passivus came pati, to suffer, endure, from which we get "patient" (both the adjective and the noun). 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 two-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 2a. 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.”
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 by 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 six-month follow-up for the patient.
When the patient was a no-show at Dr. FP’s office two months later, the office contacted the patient and charted that he had “already seen the dermatologist and will just follow up with them.”
Nearly six months later, the patient applied for benefits with a faith-based organization for sharing medical expenses. In the application, the patient noted that he had a melanoma skin mole removed and that he had a complete recovery.
When the patient next returned to Dr. FP (approximately one year following the no-show), the record shows the patient requested a dermatologist referral because his previous dermatologist told him to follow up in one year. Dr. FP had not received a report from the telehealth dermatologist but noted “per patient everything was fine.” Dr. FP completed a referral request form to a dermatologist for melanoma history and multiple nevi. Two weeks later, Dr. FP’s office sent a one-page referral by fax to a new dermatologist that listed “cyst melanoma history.” Though that dermatologist initially consulted with the patient without apparent knowledge of the melanoma history, he made an addendum a week later noting the patient’s history of “melanoma 1.4 mm to right shin.”
After another no-show, the patient returned to Dr. FP five months after the second dermatology consult with a complaint of a torn muscle in his right thigh. Dr. FP discussed with the patient the possibility of lymph node involvement from the melanoma, to which the patient responded that neither dermatologist mentioned lymph pathologies. Dr. FP ordered an ultrasound of the groin, which revealed a solid mass. After an MRI, Dr. FP sent the patient to a surgeon, whose excision biopsy revealed metastatic melanoma with extensive necrosis and BRAF mutations.
In the course of his cancer treatment (during which he told his doctors that the original lesion had been removed), the patient declined BRAF and MEK inhibitors in favor of a naturopathy course. The patient died several months later ― two years after his first consultation with Dr. FP. His family sued Dr. FP and other providers. Dr. FP and the family resolved the legal matter informally.
In situations of life-threatening illnesses, jurors will expect to see detailed documentation of the patient education process and a referring physician’s hands-on coordination with patient’s other physicians. A record showing less than a physician who is actively involved in the at-risk patient’s follow-up will suffer under litigation’s withering review.
Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.