The malpractice risk of high deductibles

The malpractice risk of high deductiblesAs the cost of health insurance rises, patient deductibles are getting bigger.

More doctors are reporting that patients are coming in less frequently for chronic care followups, skipping medication refills, or balking at the out of pocket costs for various tests.

Sometimes, however, this can get physicians into trouble.

I was reading through a copy of Massachusetts Medical Law Report, and saw this story of a primary care physician who was sued for not offering colon cancer screening:

A 65-year-old man was belatedly diagnosed with cancer of the sigmoid colon, which caused his premature death.

From 2002 through 2006, he was a patient of the defendant. It was undisputed that during this time, the defendant neither offered nor performed a complete physical exam, including but not limited to colon rectal cancer screening.

In June 2006, the patient presented to the hospital with complaints of abdominal pain for the past several hours and no bowel movement for several days. An abdominal pelvic ultrasound showed free air, while a CT scan confirmed free intraperitoneal air consistent with a perforated bowel.

The patient was taken to the operating room emergently and underwent exploratory surgery, which detected the stage IIIB colon cancer. The disease was later found to have spread to his lungs. His condition deteriorated and he died in April 2007.

A tragic case, for sure.

But further down the article revealed the reasons why the physician didn’t offer screening:

[The physician] claimed that the patient was only seeing him for blood pressure checks, and did not want a “full PCP.” He was a private-pay patient and had declined any further medical services.

The case settled prior to trial for $1.5 million.

Unfortunately, this scenario is sure to rise as both the cost of health insurance and the unemployment rate rises. More patients may be willing to put off that colonoscopy if it’s not covered by insurance.

Doctors need to explain the risks of skipping these tests, and follow through on whether they’ve been performed, or not.

Just as important, if the patient declines age-appropriate screening tests, that needs to be documented in the chart, along with whether the patient understands the medical ramifications of their decision.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of, also on FacebookTwitterGoogle+, and LinkedIn.

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  • ninguem

    But if he’d gone to a cardiologist who only treated high blood pressure, it would have been OK.

    • Anonymous

      Bingo! Only the primary care docs are expected to provide services that patients don’t want and won’t pay for.

  • Anonymous

    something tells me if the test was offered and declined, the doc would have still been held responsible.

  • Jeanine Satriano-Pisciotta

    What is this world coming to? My mother in law was told by her MD to get a colonscopy for the past 6 years. Well she died on Sept 27, stage 4 with mets to liver. She was diagnosed 6 weeks prior, they had to do a colostomy, but couldn’t resect the tumor. Her MD called and stated he was sorry, she was so sick. It wasn’t his fault and I told him so. It was my MIL’s choice not to do it. Now patients will sue for MD’s not dragging them to an exam. Nonsense.

  •!/CloseCall_MD Close Call

    Coming soon to an EMR templated note near you:

    “Patient counseled about colon/breast/prostate cancer screening.  Patient verbalizes real risk of cancer if tests delayed/forgone.  Imaging requisition emailed, faxed, mailed and handed to patient.  Patient refuses to do tests.”

    Rinse and repeat.

    • Anonymous

      It seems every family practice article has new ideas for topics to cover with patients at every visit, and of course none of them “add significant time to the average visit.”  I’ve tried to cover this by printing up a 2 sided sheet with as many health related “bites” as I can–immunizations, tests, procedures, self-help issues. And I document that in the record.  Now, whether the patient actually reads it is another matter.

      The “cover your butt” allowance in the medical record just keeps getting bigger and bigger.

      • Anonymous

        This is another unintended consquence of the disastrously ill-conceived PCMH.

        Although no one is paying us for the work, it is more and more expected that primary care docs will provide the full range of medical home services.

        My med mal carrier says the number one growth area for suits in this part of the country is against primary care docs for failure to properly “coordinate care.” I see a patient once for a sore throat, and I immediately become responsible for all their interactions with the medical system.

        Thank you, AAFP!

      • Anonymous

        It is not the role of the physician to cover every single risk that life has to offer in the context of an office visit. So called “prevention” has actually harmed a lot of people (i.e. PSAs). Shouldn’t we be preventing preventive medicine? Can we get back to treating sick people someday? 
        The real lesson of this article may be: Stay the heck out of Massachusetts. 

  • ninguem

    Jackpot for the lawyer.

  • Anonymous

    There is another scenario here that no one has mentioned.  What if you have a person who fears being harmed during a colonoscopy?  You insist on the tests  They agree reluctantly and then are harmed.  What is your liability? (Before anyone jumps in to say that complications are exceedingly rare, I will point out that I know 4 people who were harmed during routine colonoscopies.)

    • Anonymous

      if someone declines the procedure out of fear of complications, that is their decision. and they accept the responsibility for potentially undiagnosed colon cancer.

  • ninguem

    And Kevin, I do not accept the premise that this scenario flows from high-deductible insurance or no insurance.

    Fully-insured people can come in for nothing but episodic care, surely you see that in your own practice.

  • ninguem

    One more thing to add. Wally World appears to want to double down on their medical clinics. NPR says they want to do “primary care”.

    Notice the wording in the article, how they want to do diabetes care of HIV care, etc. Wal-Mart’s not stupid. Guaranteed, they will arrange it so they will take care of you for HIV……and nothing else. Diabetes……and nothing else.

    Liability will be dodged, not just the cardiologists managing just hypertension, or the OB/GYN’s filling out their schedule with general medical care of women. Add to that the doc-in-the-box clinics. Really nurse-in-a-box clinics. They will still find a community primary care doc somewhere to clean up after them…..and leave holding the bag for this speculative liability.

  • Anonymous

    Don’t gastroenterologists do colon cancer screening?
    PCP hangs, GI gets payed. Seems fair.

  • Anonymous

    Dr. Pho, Your commentary can be used as the impetus for physicians to rethink the reasons they became physicians and took the Hippocratic Oath.  The patient as portrayed in your commentary is not just the vehicle of cancerous organs, but a human being who can not afford his health care, his prescription medications, and thus, he resorts to a malpractice suit to compensate for his absence from being a patient because he could not afford the price of health care.  Although sad, the price of his life set at 1.3 million dollars, reflects the myth that health is not a commercial good tied to employment and the physician is not the one who gets paid for service.

  • Edward Pullen

    This is how I read your post.  Our uninsured patient who comes only when something hurts or seems wrong and wants a quick and inexpensive visit, needs to be counseled to get preventative services, if declined this needs to be documented, and we should probably also continue to contact this patient urging them to get these preventative services we know they will not choose to get because we know they cannot afford them.  If we do this we make the inexpensive visit the patient wants either more expensive if we bill for the time spent trying to get them to get services we know they cannot get, or we just do it and not bill for it.  Either way the whole routine is strictly a defensive measure as the patient has no intention of actually choosing to get the services done.  It’s crazy.  

  • jamesp

    So why arent more of us boycotting the AAFP???

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