When you receive requests for pathology specimens—original tissue slides, blocks, or cytology smears—remember that these are irreplaceable materials that may become evidence in a malpractice claim, and follow the steps outlined in this article.
These materials are the property of the laboratory to which they are submitted. Pathologists are obliged to use such materials for patient benefit and have an added responsibility to maintain them in a safe and secure environment.
You will periodically receive requests from attorneys for slides, fixed tissue, or blocks. Knowing how to respond will help safeguard these specimens and minimize your liability. All requests require the written authorization of the patient.
It is necessary to separate requests into medical and legal categories. Medical requests may be generated for continuity of care issues or be necessary for follow-up of medical conditions. Patients may relocate or choose a new doctor who may want (or need) to confirm a previous diagnosis or other medical history details. Specialty referrals to another medical center constitute yet another of the need-to-know scenarios.
However, even when a request appears to be purely medical, you must take steps to preserve original, irreplaceable materials—to the extent possible—in the event that providing the requested information might lead to a claim or a lawsuit against you or another clinician.
If only histopathology slides are requested, prepare recuts, and label them as such to avoid any confusion with the original slides in the event of a claim or lawsuit. Examine the slides for comparability. If they are comparable, send only the recuts and a copy of your report. Retain the original slides.
If your review of the original slides or recuts reveals an error by you or a colleague, you should prepare an amended report. That report should be sent to the original treating physician and to the requesting doctor, along with a letter of explanation. Do not be defensive; merely state the facts. A personal phone call to the original doctor and to the requester is recommended, and such calls should be documented and dated—preferably in the amended report. Notify our Claims Service Team (thedoctors.com/claims) of the possibility of a potential claim when an amended report is issued.
If original slides must be sent because recuts are not comparable, or if irreplaceable items such as cytology smears are requested, you have no choice in purely medical situations but to comply.
When responding to medically motivated requests, always follow the procedures described below:
Place a copy of your cover letter in a tickler file, and devise a follow-up system to ensure that any materials you want back are in fact returned. Maintaining such a system is well worth the effort if a claim should arise.
Requests for specimens for legal purposes may be a simple letter or a letter accompanied by a subpoena. Both types of requests should be accompanied by the patient’s written authorization to release.
It is reasonable to confer with the attorney to ascertain the purpose of the request and to determine which specimens are actually needed. If it is possible to do so, follow the guidelines outlined previously for medically motivated requests—unless the attorney insists on the original slides.
If the laboratory specimen cannot be released in this manner, we recommend that you notify The Doctors Company. You can then inform the attorney that the requested materials cannot be recut or that only the original slides are on file. State that the specimens will be made available for examination by a designated expert on laboratory premises under your supervision. Only under a court order should originals or irreplaceable specimens be released. When in doubt, call The Doctors Company.
Whether you or a clinician is named in a claim or lawsuit, do not send any materials without The Doctors Company’s concurrence. We (or your assigned attorney, if you are named) will ascertain whether recuts of blocks will suffice. If so—and if the plaintiff’s attorney agrees—recuts can be prepared and sent as outlined earlier.
If The Doctors Company or your attorney cannot accommodate a plaintiff’s attorney who insists on original slides or if only the original slides are available (as, for example, with cytology slides), The Doctors Company or your attorney will file a motion in court to limit discovery and will argue for an examination of slides or other materials by the plaintiff’s expert on your premises and under your supervision.
In this scenario, two possibilities arise: 1) You receive a favorable decision from the court, and you need not send materials; slides and other materials will be examined on your premises; or 2) the court orders you to turn over the materials, and you must comply. In the latter instance, if original slides or other irreplaceable preparations are then broken or lost, you will operate under the court’s protection from charges of spoliation of evidence.
Even when the court orders the examination to take place on your premises, the plaintiff’s expert may want deeper cuts, more tissue submitted, or special studies performed. In any of these instances, you may offer to prepare the additional materials and have them examined on your premises, but do so only in consultation with The Doctors Company and your attorney (if one has been assigned).
It is possible that the plaintiff’s lawyer may go back to court, demanding blocks of tissue so that the attorney’s expert can perform additional examinations. If that happens, your attorney will oppose the demand. Your subsequent course of action will depend on the second decision of the court. Again, if you are forced to turn over the materials, you will have the court’s protection in the event of damage or loss.
If the plaintiff’s attorney demands original slides, blocks, or other irreplaceable material during the interval between that demand and your attorney’s resistance to the demand, you should—in all histopathology cases—prepare recuts if there is sufficient residual tissue in the blocks to produce comparable slides.
Our current legal culture requires you to be aware that an apparently innocent request always has the potential to become a claim or lawsuit against you. Call The Doctors Company anytime questions arise regarding requests for pathology specimens.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.