Failure to order follow-up AFP testing

Presentation

A 52-year-old man had been treated for chronic hepatitis C and cirrhosis beginning in 2008. Since he had an increased risk of liver cancer, the patient’s gastroenterologist (Gas­troenterologist A) recommended monitoring, including semi-annual alpha fetoprotein (AFP) testing and annual liver ultrasounds. The patient did not follow these recommen­dations, but did have AFP tests in 2012 and 2014. 

Gastroenterologist A documented his plan: “six months alpha fetoprotein and annual abdominal ultrasound.” He copied the patient’s primary care physician on this plan.

Physician action

Gastroenterologist A retired from the group, so when the patient returned in July 2016, he was seen by Gastroenterologist B. When the patient called to make his appointment, he asked what lab work he needed to complete before the appointment. He was told he needed lab work including an AFP test. An ultrasound done on July 5 revealed evidence of cirrhosis and splenomegaly, but no obvious liver lesion. 

On July 11, Gastroenterologist B performed an EGD that revealed esophageal varices and gastritis. A colonoscopy completed that day showed a 4-mm polyp in the ascending colon. Gastroenterologist B removed the polyp with a biopsy forceps. His recommendations were to repeat the colonoscopy in five years. 

Gastroenterologist B copied the patient’s primary care physician about the office visit and test results. However, he did not document his plan for the patient to obtain an annual abdomi­nal ultrasound or for an AFP test every 6 months. 

Gastroenterologist B later testified that he told the patient to continue to get these tests, but he did not document this plan. Gastroenterologist B stated that if he wanted the patient to stop this routine, he would have documented that. 

The patient never returned to Gastroenterologist B or any other physician at the practice. He continued seeing his primary care physician. There was no documentation in his primary care record that the patient was asked about follow up with a gastroenterologist. 

In January 2020, the patient came to the emergency department (ED) with acute anemia secondary to upper GI bleeding. An AFP test revealed an elevated reading at 184. A CT and MRI showed Stage IIIC liver cancer extending into the portal vein. Resection was not an option.

The patient had a very poor response to chemotherapy. The disease progressed, and he died in July 2020.

Allegations

Lawsuits were filed against Gastroenterologist B and his group practice. The plaintiffs claimed Gastroenterologist B’s failure to order the required tests was negligence. Allegations against the group involved their failure to send follow-up communication telling the patient that he needed repeat studies. The plaintiffs also claimed that when the patient called in for prescription refills, staff approved the refills without requiring him to come to the of­fice or reminding him about the repeat studies. 

The patient’s primary care physician was also sued.

Legal implications

The plaintiff’s expert, a gastroenterologist, stated that the patient’s condition required AFP testing and liver ultrasound at least annually. Failure to follow up with the pa­tient about this testing was a breach in the standard of care. An oncologist who reviewed this case for the plaintiffs stated that had the patient been afforded timely diagnosis and treatment — more likely than not — his cancer would have been cured with appropriate treatment. 

Defense experts who reviewed this case had mixed opinions. They all agreed that the primary care physician, Gastroenterologist B, and the patient all shared some responsibility for the outcome. However, one expert stated that a reasonable gastroenterologist would have sent a reminder to the patient about the need to follow up a year after his last visit. It was also problematic that Gastroenterologist B did not document his recommendation for the patient to continue the annual tests or put this in the letter to the primary care physician.

Disposition

This case was settled on behalf of the gastroenterologist and his group practice. The case against the primary care physician was dropped. 

Risk management considerations

Documenting evidence of the patient’s continuity of care is an important component of risk management. Using the appointment reminders in appointment scheduling software is one way to track future appointments. This can be used if a patient hesitates to schedule the next annual visit. This also gives ample time to communicate specific lab work or other tests required prior to the visit. It can be helpful to prevent a patient from “falling through the cracks” and can prove helpful in the defense of an allegation of failure to diagnose and treat. 

Setting up a tracking system for tests and referrals is a vital compo­nent of risk management. If test results are not received within a reasonable time, con­tacting the patient by phone and documenting the call in the medical record demonstrates your effort to minimize risk. The caller’s name and date of the call (including attempts) should be included. If the patient does not follow through, record the patient’s noncompliance and notify the physician. This may es­tablish that the physician was not negligent in follow up and that the patient contributed to the poor outcome.