Managing legal risks of COVID-delayed screening, follow-up

THERE is little doubt the COVID-19 pandemic has affected care and screening for chronic health conditions.

Australian Institute of Health and Welfare analysis shows drops in patients presenting for screening services such as mammograms and colonoscopies during the pandemic which have not returned to expected rates (here, here). The Royal Australian College of General Practitioners (RACGP) also reported a significant drop in presentations for chronic conditions including musculoskeletal, circulatory, endocrine and metabolic conditions in 2020 (here).

Amid recurring waves of COVID-19 and ongoing resource and staff shortages, returning to “practice as usual” remains a stretch for doctors. In this context, how worried should doctors be about missed screenings and delayed follow-up? What are the main medico-legal issues? And what are some strategies practices can implement to ensure appropriate patient care?

Medico-legal issues unpacked

Good patient care involves formulating and implementing a suitable management plan, including arranging investigations and taking reasonable steps to follow up on investigations.

This should be balanced against the need to recognise and respect patients’ rights to make their own decisions. While health care professionals cannot insist patients attend for treatment if they are unwilling to return for follow-up appointments or further investigations, they are expected to ensure patients understand the implications if they decline care.

Failures in follow-up can raise several medico-legal issues.

Missed or delayed diagnosis

Diagnostic error or delay is a particular concern for GPs.

Avant’s claims data indicate that concerns about diagnosis are behind nearly a quarter (23%) of regulatory complaints and compensation claims against GPs (here). Of these diagnosis-related claims, around four in five involve allegations of missed or delayed diagnosis, while the other one in five alleges misdiagnosis.

This analysis was conducted before the COVID-19 pandemic and relates to financial years 2015–2019. It is likely that COVID-19-related delays in accessing care will increase the challenges of providing timely and accurate diagnosis.

It is important to be clear that missing a diagnosis does not necessarily mean the doctor’s care has been below the expected standard. In diagnosis claims Avant has analysed, care was found to meet expected standard in most cases; however, about one-third (34%) were found not to have met appropriate standards (here).

There are some areas of care where diagnostic error occurs more frequently. These include when the examination may be inadequate at the initial consultation, when doctors delay referring for further testing, or if they fail to pay attention to patient symptoms or complaints. Inadequate follow-up is another common source of diagnostic error. Since both aspects of care have been particularly challenging during the pandemic, it will be important for doctors to pay particular attention to processes and care protocols to minimise the risk of diagnostic errors or delays.

Follow-up and recalls

Even before COVID-19, follow-up could be challenging. Doctors would often ask how far they are expected to go in following up patients for review, test results or specialist referrals.

The legal answer is that practitioners are expected to take reasonable steps to make sure that investigative tests or referrals are acted upon appropriately and results communicated in a timely manner (here).

Doctors are not expected to chase a patient over every routine test result or recommended investigation (here). Nor are they required to engage in “an exercise in futility”, chasing patients who decline to follow advice about further investigations (see Varipatis v Almario [2013] NSWCA 76 [18 April 2013] at [38]).

The practical question then becomes how much is reasonable and appropriate. As set out in the RACGP’s Standards for General Practices, this will depend on multiple factors, including

• the seriousness of the patient’s condition
• the risks to the patient of delaying or not having the test or attending the specialist appointment
• the significance or abnormality of any results or reports.

Patient communication

It is important to inform patients why they should follow up and when they should return.

If doctors are recommending a “wait and see” approach, they should explain to the patient what this means and what symptoms they should be aware of. As one recent case has confirmed, it can be appropriate to “use time as a diagnostic tool” but this needs to be made clear to the patient. Particularly in the current environment where patients may have difficulty making appointments, doctors should be careful to explain when they want patients to come back.

Strategies to get patients back into practice

It is likely that there will be delays in diagnosis due to the COVID-19 pandemic – which may mean more difficult treatment and worse outcomes for patients. Anecdotally we are hearing of issues missed simply because of not being able to see the patient, so one response to that will be to get patients back into the practice whenever possible.

Follow-up and recall processes

When a doctor or practice has failed to follow up, this can be because processes have been inadequate or have broken down.

As a first step it is always important to check recall processes and make sure they are appropriate for the current conditions. For example, systems that relied on doctors checking back through previous consultation notes to make sure all recalls had been followed up have been found to be inadequate (here). Paper-based reminder lists may be risky if some staff are still working away from the practice.

It is also likely that reminder lists for most practices will be long, so your practice may need to look at tactics to ensure you can triage this list effectively and identify patients who need to be seen as a priority.

Consider also that the threshold for urgency may need to change from pre-pandemic times. Follow-up on a slightly elevated prostate-specific antigen score, for example, may have been appropriate to review in three or six months so may not have been flagged as urgent. But if the test was conducted two years ago and the doctor has not seen the patient since, the level may have changed.

This means it may be important to look beyond the reminder category to check the clinical issue and consider whether it has become more urgent.

One practical tip can be to create new categories or flags in practice recall systems – for example, “significant blood test” so that it is easy to identify these as higher priority.

Scheduling processes

Doctors may also be managing full appointment books and limited capacity to see patients. In this case, they should consider whether they need to adjust appointment scheduling so they can keep some bookings free for patients who need priority appointments.

Reminder communications

It may also be appropriate to review reminder letters. If they say something general such as “please schedule an appointment for a blood test”, the patient may not appreciate the importance of the test. Consider adding a sentence to emphasise that the doctor really wants the patient to come back in so you can make sure everything is okay.

Doctors should also make sure to consider how they are following up with patients.

The RACGP’s Standards for General Practices recommend trying multiple means of communication if recalls are important. This may include phone calls, mail or email to the address on file, as well as SMS messages if appropriate. If it is clinically warranted, we also recommend sending a registered letter explaining the importance of the follow-up appointment or investigation, and the risks of not proceeding.

Another strategy for managing patients who fail to return can be to ask patients to confirm that they have followed up the issue with another practitioner. Again, that sends the message that the issue should not be ignored, and if they have sought treatment elsewhere, doctors can document this and take them off their recall list.

Delivering care via telehealth

If telehealth is appropriate, it may also be helpful to arrange a telehealth consultation to review the patient’s condition and make a plan for further treatment. A call from a doctor may help emphasise their concern for the patient’s care and reinforce the need to follow up on treatment for their condition.

There will be times when doctors need to physically examine a patient and telephone consultation will not be sufficient. Video may be preferable as it will give you more information, but at some point the patient is likely to require a physical examination.

If doctors are concerned that they have not seen the patient for some time, they should be clear with the patient that they will need to come in so the doctor can physically check how things are going. Vaccination appointments can be a good trigger to bring someone in for an extended appointment. When patients call for script renewals, it may also be appropriate for the doctor to say that they will need to see them in person next time to check how they are going.

Remember also that for the telehealth consultation to be billed to Medicare, patients generally must have had a face-to-face consultation with the GP or someone in the practice within the last 12 months (here).

Documentation

Your medical indemnity insurer will continually stress the importance of keeping a record of your discussion with the patient, and all recall attempts.

Making sure the patient understands the importance of follow-up is essential for good patient care. Being able to show that a doctor has explained this to patients and followed up appropriately is essential for a defence if any questions are raised about the care. If a doctor is using a recall and reminder system, it is helpful to keep records of contact attempts. They should be sure to also note any calls or contacts that anyone in the practice makes outside that system.

Conclusion

Judging by recent Australian health data, and the experiences of many Avant members, it is reasonable to be concerned about the longer term effects of the pandemic on delayed health care and missed screening or follow-up.

While doctors cannot insist patients attend for treatment, they are expected to take steps to ensure patients are clear about the need for screening or testing and understand the implications if they choose to decline care.

Dr Michael Wright is a Sydney-based GP and Chief Medical Officer at Avant Mutual.

Georgie Haysom is General Manager of Advocacy, Education and Research at Avant Mutual.

Disclaimer: This article is intended to provide commentary and general information. It does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances.

The statements or opinions expressed in this article reflect the views of the authors and do not necessarily represent the official policy of the AMA, the MJA or InSight+ unless so stated.

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