Recently, the New Mexico Supreme Court decided the issue of whether one doctor’s failure to communicate an alternative diagnosis to another doctor constituted medical negligence or simple negligence. The court, reversing both the trial and appellate courts, held that the failure to communicate constituted simple negligence. Expert testimony, therefore, was unnecessary to establish the standard of care.
In this case, the patient presented to the emergency room (ER) with abdominal pain. A radiologist performed an abdominal scan and interpreted the results. The radiologist’s initial conclusion was that the patient had a diverticular abscess. The radiologist discussed this diagnosis in person with the surgeon. It was unclear whether he and the surgeon discussed the possibility that the patient had cancer. The surgeon conveyed the diverticulitis diagnosis to the patient and recommended that he be admitted to the hospital for observation. The patient refused and was discharged from the ER. The surgeon also advised the patient to follow up to have the left part of his colon removed, although he never did.
In his report, the radiologist noted that the abdominal study revealed an abscess associated with diverticulitis, but might alternatively be an abnormal growth of cells associated with cancer. The impression section of the radiologist’s report stated that the results of this study were communicated to the ER physician and surgeon. The radiology report did not indicate whether copies were delivered to either the ER physician or surgeon. In a sworn statement, the surgeon said that she did not receive the report noting the alternative cancer diagnosis and that she would have expected to receive it. The surgeon stated that had she seen the alternative diagnosis in the report, she would have tried to do whatever she could to contact the patient. Fourteen months later, the patient was diagnosed with Stage III colon cancer.
The patient sued the hospital. The complaint alleged that, as the result of the communication failure between the radiologist and surgeon, the hospital failed to tell him about his cancer diagnosis.
The Supreme Court of New Mexico held that expert testimony was not necessary to establish the standard of care. Communication of the cancer diagnosis by one doctor to another was subject to review under an ordinary standard of care because the communication was not so far removed from common knowledge that a layperson factfinder could not logically consider whether the failure to communicate was negligent. Negligence of a doctor in a procedure that was peculiarly within the knowledge of doctors, and in which a layperson would be presumed to be uninformed, would demand expert medical testimony as to the standard of care. However, if negligence can be determined by resort to common knowledge ordinarily possessed by an average person, expert testimony as to standard of care was not essential.
See: Zamora v. St. Vincent Hosp., 2014 WL 4638900 (N.M., September 18, 2014) (not designated for publication).
By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.
For more details, see the Scalpel Weekly News, September 29, 2014.
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For more information on cancer diagnosis error, see the Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis
For more information on emergency medicine liability, see the Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care