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Q: What's my liability if I get a false-positive test result and tell the patient she has a serious illness, such as AIDS, when she doesn't? Even when the patient later learns that the test was wrong, she'll be understandably upset. A: In most states, the patient has to prove demonstrable physical damage before a doctor can be held liable. A patient isn't usually permitted to pursue a lawsuit for emotional damages alone without extenuating circumstances. However, some states are recognizing cases for emotional distress for false-positives. The Alaska Supreme Court recently held that a patient need not suffer physical injury to recover damages for negligent infliction of emotional distress resulting from a physician's misdiagnosis of AIDS. A test for HIV antibodies was performed on a patient as part of a battery of blood tests when she was admitted to a hospital for pneumonia and gastritis. The initial HIV screen was found to be repeatedly reactive. Although the lab recommended further testing, the admitting physician believed that he should advise the patient as soon as possible. The doctor first told the patient's husband of the test and asked him to help break the news to her. Several days later, another physician concluded that the test results were wrong. A retest confirmed that. The patient later sued the first doctor, claiming that his actions had caused her severe emotional distress, including divorce. She also charged that he had breached his duty of confidentiality by disclosing the test results to her husband. A trial court initially dismissed the emotional-damage claim. "To allow a claim for medical malpractice on the basis of misdiagnosis in the absence of any physical injuries ... would open up the floodgates for claims," the court held. However, the state Supreme Court reversed that decision, stating that the doctor had a duty not to cause a foreseeable and unreasonable risk of emotional harm. Whether the patient's emotional distress should be compensated is a matter for a jury to decide, the court said. But the court rejected the breach-of confidentiality count because disclosure to a spouse of a diagnosis of HIV infection is "privileged as a matter of law." If you think a result could be false-positive, test and retest until you're reasonably sure it's accurate. Inform the patient of a true positive result as compassionately as possible. Lee Johnson has twenty-five years of experience in healthcare law, risk management, claims management, risk malpractice defense litigation and general counsel advice to hospitals and other health care providers. She lectures to physicians, hospitals, bar associations and medical societies; produces internet programs, self-study programs, videos and audiotapes on risk management and the defense of medical malpractice litigation; and writes numerous articles, pamphlets and books on risk management topics. She is a contributor on risk management for Medical Economics magazine. You can learn about her at website. Occ. Med. Central is growing every day. There is so much useful information on the web there is no way we can know nor find it all. That's where you come in. Don't feel limited by our current category list. If you find the item useful, then your colleagues will want to know about it. Click on the "Contribute" button to send us your contribution.  |