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Here is a possible scenario:
Marion Foster and Miriam Farley had Pap smears taken on the same day that were sent to the same medical laboratory for analysis. Marion’s results were abnormal and Miriam’s were normal. Unfortunately, Marion’s results were reported as normal and Miriam’s were reported as abnormal due to a clerical error.
Marion received a postcard from her doctor that indicated the test was normal, along with his recommendation that she schedule another Pap test within the next two years. Miriam's doctor called her and explained the abnormal test result. However, he was cautious and recommended that she have another Pap smear taken before proceeding, just in case the first test was incorrect. The second test was normal and Miriam was thrilled to not have to endure either surgery or additional treatment.
Marion followed her doctor’s recommendation and had another Pap smear taken two years after the initial mistake. The test result was not only abnormal, it was considered class 5. A subsequent test produced the same results and surgery was scheduled. The surgery revealed cervical cancer that had metastasized into her uterus, requiring a total hysterectomy.
Marion consulted numerous individuals about how her cancer could have advanced so quickly and subsequently sued her physician over his recommendation to schedule another Pap smear in two years. The discovery process during litigation revealed the laboratory's clerical error and it was brought into the suit as well. |
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The insurance marketplace for medical and radiology diagnostic laboratories has a number of carriers. Our experts indicate that Admiral, Aspen, American Safety, CNA, Evanston, Markel, Argo Pro, James River, AIG, Hiscox, Zurich, Fireman’s Fund, One Beacon, Darwin, Colony, ACE and Lloyd’s are all potential markets for at least some exposures presented by these risks. However, breaking out the market is necessary. Mark Fintel, assistant underwriting manager at James River Insurance Company, explains, “Many laboratories are part of pathology or radiology group practices and are covered by traditional physician malpractice carriers. E&S markets do the bulk of the underwriting on independent laboratories that are separate from clinician groups.”
Coverage is written on both admitted and nonadmitted paper, according to Rob Keyser, vice president at PGI Commercial, LLC, but he says, “More are going nonadmitted.” Susan Posha, vice president at Arlington/Roe & Co., agrees and explains, “The wide range of specialty labs today makes nonadmitted a more affordable solution in many situations.“
David Derigiotis, professional lines underwriter at Burns & Wilcox, explains, ”The most common claims experienced by radiology laboratories are failure to diagnose or inaccurate diagnosis. They should generally be the burden of the doctor who ultimately diagnoses or fails to diagnose a condition after reviewing the test results.” Mr. Fintel agrees that imaging facilities have the greatest frequency of loss but adds, “The greatest severity is generally associated with pathology laboratories where employees review tissue specimens to determine if cancer is present.”
Jo Ann Taylor, executive vice president at U. S. Risk, agrees that radiology is a less hazardous exposure. She says some of the most common pathology lab claims are misdiagnosis of tests, emotional distress due to incorrect positive or negative test results, and mishandling of blood.
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