Dealing with a lost tissue specimen | aad.org
Dealing with a lost tissue specimen

Legally Speaking

Clifford Warren Lober

Dr. Lober is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.

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Upon entering his office at 8 a.m., Bryan hears his telephone ring. It is Annette, a dermatologist who is Bryan’s client. She is tense and obviously worried.

Bryan: Good morning, Annette! I haven’t heard from you in a while. Is everything going well?

Annette: No, Bryan. I really need your help. I just received a call from the pathology lab I use. They told me there was no biopsy specimen in the bottle I sent them! What should I do?

Bryan: Let’s take it from the top. First, when you performed the biopsy did you or your assistant look into the bottle to make sure the specimen was actually there? If it was a small specimen, it could have gotten stuck on your equipment or on a gauze pad.

Annette: Absolutely. My nurse always looks into the bottle and makes sure the specimen is in there before he puts the cap on the bottle.

Bryan: What happens to the bottle after the specimen is placed in it? How does it get to the lab?

Annette: A courier from the lab picks up our pathology specimens and takes them to the lab. [pagebreak]

Bryan: Does the courier sign anything to confirm that he picked up the specimens?

Annette: No. Why should I bother having him sign? This lab has never lost a specimen of mine.

Bryan: Effective immediately, you absolutely should have the courier sign when he or she picks up your specimens. My other dermatology clients have couriers sign or initial a log that simply lists the names of each patient and the number of specimens being sent. The courier looks at each of the specimen bottles and confirms that there is something inside. It only takes a few moments. If a bottle appears empty, the courier notifies the doctor before leaving the physician’s office. Once the courier signs the log book and takes the specimens, the responsibility for the subsequent transportation and handling of the specimens is the pathology laboratory’s.

Annette: What if the courier won’t sign a log book?

Bryan: Find another lab.

Annette: What should I tell the patient?

Bryan: The truth. Not only is it required by the rules of the Board of Medicine in most states, but it is ethically and pragmatically the right thing to do. Isn’t that what you would want if you were the patient? Besides, how else would you explain to the patient that you have no report? You may want to offer to re-biopsy the lesion without charging so that the patient will be less annoyed. That’s up to you. [pagebreak]

Annette: Do I need to contact my malpractice carrier?

Bryan: Although the patient may take no further action, you have a duty to promptly notify your insurance company of any potential legal action. If you do not contact them in a timely fashion your malpractice insurer may have grounds to deny coverage. Although other attorneys have advised their clients to wait until they receive a notice of intent, there is little or no downside to communicating with the insurance company at this point.

Annette: Won’t that increase my insurance rate? I am currently “claims free” and have their lowest rate.

Bryan: Although there are exceptions, most malpractice companies will not increase your rate unless you actually report a claim. Simply notifying them of a possible claim will not usually increase your rate.

Annette: I’ll certainly follow your advice. If I change my procedure now and have the laboratory courier sign for pathology specimens, won’t that be admitting that I did something wrong?

Bryan: Although the adoption of measures or new procedures that address a situation after the fact may be introduced as evidence for certain very specific purposes, most states have rules of evidence that do not allow these measures to be introduced as evidence of negligence. State laws recognize that if this was not the case, dangerous situations would be allowed to persist until pending litigation was resolved. You should go ahead and make the necessary change to your procedure to prevent a similar situation from occurring in the future. One last bit of advice: should you hear anything from the patient, please contact me immediately. 

Annette: Absolutely, Bryan. Have a great day! [Pagebreak]

KEY POINTS

  • The courier from the laboratory should sign for specimens. If he/she is not willing to do so, find another pathology laboratory.
  • Tell the patient the truth. It is ethically, pragmatically, and legally the correct thing to do.
  • In the event of an adverse incident, notify your insurance company in a timely fashion so that they do not have grounds to deny your coverage.
  • Subsequent remedial measures are usually not admissible in court as evidence of negligence.

If you have any suggestions for topics to be discussed in this column, please e-mail them to me at loberc@gmail.com. See the February 2013 issue of Dermatology World for disclaimers.