Beware of the Second Opinion Exposure

By Peter T. Crean and Nicole S. Barresi
Tuesday, February 13, 2018
Category: 

As individuals take more ownership of their health, there is a significant increase in the pursuit of second opinions. Second opinions are so frequently sought that many institutions, including the Cleveland Clinic and Johns Hopkins University, have begun offering online second opinions. In 2005, a Gallup study found that 44 percent of patients have sought or almost always seek a second opinion after their doctor diagnoses them with a significant condition or prescribes a treatment, drug or operation. A 2010 study found that 29 percent of patients feel it is necessary to obtain second opinions or do their own research regarding the proposed medical or surgical treatment.

The benefits of the second opinion are reduced risk of unnecessary treatment, better understanding of treatment options and treatment optimization. The downside in pursuing multiple opinions is that necessary treatment may be delayed, and the patient may leave without having decided which recommendation to follow, leaving one or both of the physicians without a clear plan for follow-up.

Consider this fact pattern: A patient presents to her cardiologist for testing, which indicates a potential need for a procedure. The patient is uncertain about the risk and benefit considerations and seeks a second opinion. The second opinion physician may review the prior data, obtain additional testing and speak with the patient about the options and recommendations. The patient may return to her original physician, seek another opinion, or delay acting on the recommendations. The physician who offered the second opinion will often have no further information as to the patient’s ultimate decision in regard to treatment. Should the patient experience a negative outcome, the physician who provided the second opinion may be exposed if no treatment plan or timeline was documented.

The inclination of plaintiffs’ attorneys has been to sue both providers. The original physician will note in her defense the patient’s desire to seek a second opinion and delay the procedure. The second opinion physician is likely to claim that she offered the patient a second opinion and understood the patient would return to her regular physician or notify the doctor if she were to accept the second opinion. Both of these defenses can be greatly strengthened or limited by the provider’s documentation.

The primary physician will generally have documented the patient’s history, examination findings, test results and medications. This physician will ideally also document that the patient requested to delay the procedure to obtain a second opinion and provide information regarding the discussion with the patient to defend a lack of informed consent claim. A well-documented chart can protect this provider from liability if it is clear that the patient was informed but sought a second opinion. What documentation should be considered in the context of second opinions?

The second opinion provider might provide the same level of documentation that would be noted for a patient under the provider’s care. This provider should consider documenting the tests reviewed, the discussion regarding treatment options, recommendations made, and most critically where and when the patient will seek follow-up care and that the risks of time passage were clearly set forth. A provider may believe it is obvious that the patient will return to his regular physician after the second opinion. However, without the notation of the arrangement for follow-up care, plaintiffs’ attorneys may claim that this provider had the last and best chance to intervene and avoid the negative outcome.

Accordingly, whenever a second opinion is provided, treatment options, a treatment timeline and follow-up care should be discussed and documented to help protect the provider if the patient fails to return and has a negative outcome.


Peter T. Crean is a Senior Trial Partner at Martin Clearwater & Bell LLP with over 35 years of experience in representing university medical centers and individual physicians in high exposure medical malpractice actions. Nicole S. Barresi is an Associate at the firm where she focuses her practice on the defense of medical malpractice matters. For more information visit mcblaw.com.