Failure to Follow-Up on Medical Test Results in New York

How Test Results Get Lost in the System

Test results can fail to reach the patient or provider for several reasons:

• Results sent to the wrong provider: The laboratory or radiology facility sends the results to the wrong physician or office, and the results are never reviewed.
• Results filed without review: The results arrive at the provider office and are filed in the medical record without being reviewed by the provider.
• Results reviewed but not communicated: The provider reviews the results but does not communicate them to the patient, or the communication is delayed.
• Results communicated but not acted upon: The provider communicates the results to the patient but does not recommend or arrange appropriate follow-up (additional testing, specialist referral, treatment).
• Electronic health record (EHR) errors: Results may be lost, misrouted, or overlooked due to EHR system errors or alert fatigue.
• Abnormal results treated as normal: The provider misinterprets the results and does not recognize the abnormality.
• Results pending at discharge: A patient is discharged from the hospital or emergency department with test results pending, and the results (which are abnormal) are never followed up on.
• Laboratory errors: The laboratory makes an error in processing or reporting the test, leading to inaccurate results.

The Standard of Care for Following Up on Test Results

The standard of care requires healthcare providers to:

• Review all test results: The provider must review all test results that are ordered, including laboratory, imaging, and pathology results.
• Communicate results to the patient: The provider must communicate the results to the patient, including abnormal results, in a timely manner.
• Communicate critical results promptly: Critical or urgent results (e.g., a positive cancer biopsy, a critically high potassium level, a CT showing a stroke) must be communicated to the patient and referring physician promptly. [Link to: /radiology-errors/communication-failures]
• Take appropriate action: The provider must take appropriate action based on the results, including ordering additional tests, referring to a specialist, or initiating treatment.
• Follow up on pending results: If results are pending at the time of discharge or at the end of a visit, the provider must arrange a system to review and follow up on those results.
• Document results and follow-up: The provider must document the results, the communication to the patient, and the follow-up plan in the medical record.

When Failure to Follow Up Constitutes Malpractice

Failure to follow up on test results constitutes medical malpractice in New York when:

• The provider failed to review test results that were ordered.
• The provider failed to communicate abnormal or critical results to the patient in a timely manner.
• The provider failed to communicate critical results to the referring physician. [Link to: /radiology-errors/communication-failures]
• The provider failed to take appropriate action based on the results (ordering additional tests, referring to a specialist, initiating treatment).
• The provider failed to follow up on pending results after discharge or at the end of a visit.
• The failure caused harm -- the condition went undiagnosed or untreated, allowing it to progress and cause serious injury or death.

Common Scenarios

Some common scenarios of failure to follow up on test results include:

• Abnormal mammogram not followed up: A mammogram shows a suspicious mass, but the results are not communicated to the patient, and the breast cancer goes undiagnosed for months or years. [Link to: /misdiagnosis/breast-cancer-misdiagnosis] [Link to: /radiology-errors/mammogram-malpractice]
• Abnormal colonoscopy not followed up: A colonoscopy finds a polyp or mass, but the pathology results are not communicated, and the colon cancer goes undiagnosed. [Link to: /misdiagnosis/colon-cancer-misdiagnosis]
• Abnormal PSA not followed up: An elevated PSA (prostate-specific antigen) is not followed up with a biopsy, and the prostate cancer goes undiagnosed. [Link to: /misdiagnosis/prostate-cancer-misdiagnosis]
• Abnormal biopsy not followed up: A biopsy shows cancer, but the results are not communicated to the patient, and the cancer goes untreated. [Link to: /medical-malpractice/cancer-misdiagnosis]
• Critical lab values not followed up: A critically high or low lab value (e.g., potassium, glucose, hemoglobin) is not acted upon, causing serious harm. [Link to: /medication-errors/hospital-overdose]
• Imaging showing stroke not followed up: A CT scan shows signs of stroke, but the results are not communicated to the treating physician, and the stroke goes untreated. [Link to: /medical-malpractice/stroke-misdiagnosis]
• Imaging showing tumor not followed up: A CT or MRI shows a tumor, but the results are not communicated, and the tumor goes undiagnosed. [Link to: /radiology-errors/ct-scan-negligence]
• Pending lab results at discharge: A patient is discharged from the hospital with lab results pending, and the results (which are abnormal) are never followed up on.

Proving Your Failure to Follow Up Case

To prove a failure to follow up case, you need:

• Medical records: Including the test order, the test results, the provider notes, and any communication (or lack thereof) with the patient. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• The test results: The actual lab reports, imaging studies, and pathology reports showing the abnormality.
• Expert review: Independent review by board-certified physicians to establish what the standard of care requires for follow-up of the test results.
• Standard of care evidence: Establishing what the standard of care requires for communicating and acting upon the test results.
• Causation evidence: Establishing that the failure to follow up caused harm -- for example, that if the results had been communicated and acted upon, the condition would have been diagnosed and treated earlier, and the outcome would have been different. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]
• Expert testimony: From qualified experts.

New York Statute of Limitations

Failure to follow up on test results claims are subject to the 2.5-year statute of limitations for medical malpractice (CPLR 214-a), running from the date of the negligent act.

Key considerations:

• Date of the negligent act: The 2.5-year clock starts on the date the provider should have followed up on the results.
• Continuous treatment doctrine: If you continued to receive treatment from the same provider for the same condition, the statute may be extended.
• Lavern's Law (cancer): If the failure to follow up involved cancer, Lavern's Law provides 2.5 years from the date of discovery, with a 7-year outer limit. [Link to: /misdiagnosis/laverns-law]
• Municipal hospitals: If the failure occurred at a municipal hospital (NYC Health + Hospitals), a notice of claim must be filed within 90 days. [Link to: /hospital-negligence/suing-nyc-h-h]
• Wrongful death: If the failure caused death, the wrongful death claim must be filed within 2 years. [Link to: /wrongful-death-lawyer]

Common Defense Arguments and How We Counter Them

Defense: The results were communicated to the patient.

Defense attorneys use several arguments in failure to follow up cases:

• Our Counter: We examine the medical records for documentation of communication. If there is no documentation that the results were communicated, we argue that the communication did not occur. We also look for evidence that the patient was not informed, such as the patient continuing to seek care for the same condition without knowing the diagnosis.

Defense: The patient was responsible for following up.

Our Counter: While patients have some responsibility to follow up on their care, the primary responsibility for reviewing, communicating, and acting upon test results rests with the provider. The standard of care requires the provider to communicate results and arrange appropriate follow-up, not simply to tell the patient to call for results.

Defense: The results were not critical and did not require urgent follow-up.

Our Counter: We use expert testimony to establish what the standard of care requires for follow-up of the specific test results. If the results were abnormal and required follow-up, the provider is liable for failing to follow up, regardless of whether the results were critical.

Defense: Earlier follow-up would not have changed the outcome.

Our Counter: We use expert testimony to establish that earlier follow-up and treatment would have changed the outcome -- for example, that a cancer caught at an earlier stage would have been more treatable. [Link to: /delayed-diagnosis-lawyer/loss-of-chance]

Compensation Available

A successful failure to follow up claim in New York can provide compensation for:

• Medical expenses: Including past and future medical care, surgeries, rehabilitation, and medications
• Lost wages and lost earning capacity: For time missed from work and reduced ability to work
• Pain and suffering: NY has no cap on non-economic damages
• Permanent disability: For brain damage, organ damage, amputation, and other permanent conditions
• Future medical care costs: Based on a life care plan, discounted to present value
• Loss of consortium: For the impact on family relationships
• Wrongful death damages: If the failure caused death [Link to: /wrongful-death-lawyer]

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.