A reader contacted me last week with a situation that happens all too often.

 

She started experiencing symptoms three months ago, so she called her primary care provider to make an appointment. He did not have any openings, so she went to an urgent care facility. The urgent care facility ordered several laboratory tests and asked her to follow up with her primary care provider to review the results.

 

The patient made an appointment with her primary care provider the following week. She told him about the lab tests and gave him a copy of the results, which she had received in the mail. The test results revealed a chronic medical condition that requires medication.

 

Her doctor however did not prescribe any medication. Now her condition has worsened, causing her to miss time from work and be hospitalized twice at great expense. She wants to know her legal rights.

 

Virginia Medical Malpractice Claims Based on a Physician’s Failure to Review or Act on Laboratory Test Results Someone Else Ordered

 

In Auer v. Miller, 270 Va. 172 (2005) the Supreme Court of Virginia found that a physician had immunity from medical negligence claims because the physician had not ordered the test. That decision was overturned a few months later with the Virginia Supreme Court’s decision in Oraee v. Breeding, 270 Va. 488 (2005). In response the Virginia General Assembly revised Section 8.01-581.18:1 of the Code of Virginia.

 

Section 8.01-581.18 states:

 

Whenever a laboratory test or other examination of the physical or mental condition of any person is conducted by or under the supervision of a person other than a physician and not at the request or with the authorization of a physician, any report of the results of such test or examination shall be provided by the person conducting such test or examination to the person who was the subject of such test or examination. Such report shall state in bold type that it is the responsibility of the person so examine or tested to arrange with his physician for consultation and interpretation of the results of such test or examination.

 

Section 8.01-581.18:1 provides immunity to physicians for laboratory results and examination ordered by someone else:

 

No physician shall be liable for the failure to review or act on the results of laboratory tests or examinations of the physician or mental condition of any patient, which tests or examinations the physician neither requested nor authorized …

 

There are however limits to this immunity. And the physician has the burden of establishing that he or she should have immunity by proving that:

 

  • No physician-patient relationship exceeded when the laboratory results were received or accessed by the physician;

 

  • The physician received or accessed the results without a request from the patient for consultation and without having responsibility for management of the specific physical or mental condition that the lab result relates to;

 

  • When the physician was consulted on the specific physical or mental condition, the lab results were not part of the physician’s management of the patient and the physician had no reason to know he should have told the patient about the results or referred the patient for further consultation; or

 

  • The physician received or accessed the lab results, but interpreting them exceeded the physician’s scope of practice and he or she had no reason to know that he or she should have told the patient about the results or referred the patient to another doctor.

 

As you can see a physician may have difficulty proving that he or she has immunity from liability for failing to review or act on lab results if he or she had access to the records.

 

Call or e-mail Richmond medical malpractice attorney and Newport News medical malpractice lawyer Corey Pollard if you have suffered harm because a physician failed to review your lab test results or to act on them. We represent personal injury victims in medical negligence claims.