David M. Lang cautions clinician readers to never abandon the standard of care, no matter the circumstances or objections of the patient.
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
In New York City, a 21-year-old man was seen by the defendant gastroenterologist, complaining of a painful abdomen and rectal bleeding. The gastroenterologist recommended further testing, but the plaintiff deferred testing or treatment because he had no medical insurance.
About six months later, a second physician saw the patient and made a diagnosis of stage IV cancer of the colon and rectum. The disease had metastasized to the patient’s lungs. After four surgeries, the cancer was deemed untreatable.
The plaintiff claimed that an earlier diagnosis would have improved his chance for a cure.
The defendant, however, maintained that since the plaintiff’s cancer was resistant to chemotherapy, an earlier diagnosis would not have changed the outcome. The defendant claimed that he had specifically recommended a colonoscopy, which would have been the only way to diagnose the plaintiff’s cancer.
The case was initially tried to a defense verdict, but a new trial was ordered. On retrial, the plaintiff claimed that the defendant should have referred him to a facility where the recommended testing could have been performed without his having health insurance. According to a published account, a second defense verdict was returned.
How often have we encountered a patient who protests further intervention or analysis for lack of insurance? How often have we been tempted to change our practice patterns to accommodate this reality? In a word, don’t.
This is an unfortunate young man and a tragic case, and it underscores the difficulty patients and clinicians have navigating the system when the patient is uninsured—but it would be unfair to fault the clinician. As clinicians, we want to help our patients, especially those who are uninsured. But if you find yourself straining for ways to avoid the standard of care because the patient is uninsured, you are walking the patient down a dangerous road.
Even though this case resulted in a defense verdict, it illustrates the reality that patients who cannot afford treatment today may well bring malpractice claims tomorrow against clinicians who fail to provide that treatment. At best, jurors will react negatively if a clinician appears to be offering or withholding care based on financial grounds—and at worst may impute financial self-interest if the best treatment is not formally recommended by the clinician because of the patient’s perceived inability to pay. Don’t let financial matters affect your recommendations to the patient.
Be wary, too, of offering a substandard course of treatment in lieu of the proper course. At trial, the clinician will not be seen as compassionate for considering the patient’s insurance plight, but negligent for providing substandard treatment that was accepted by the patient as comparable to the standard of care.
In this case, it is likely that the gastroenterologist recorded the patient’s refusal to have a colonoscopy, and this protected him at time of trial. On retrial, interestingly, the plaintiff changed his theory of the case to claim that the standard of care required the clinician to refer the patient to a facility where the testing could have been performed free. This was probably challenged by defense counsel on the basis that the clinician does not have a legal duty to seek out locations where a patient may obtain free care.
In sum, offer the standard of care, nothing less. Document any treatment refusal and the reason for that refusal (including when it is based on lack of insurance). If, after that refusal, the patient requests alternative treatment (and the clinician is comfortable offering an alternative), provide the alternative care with a clear instruction to the patient that the best treatment is the standard of care and the alternative is provided only in the wake of the patient’s refusal.
Use alternative treatments cautiously. The danger of suggesting an alternative is that the clinician will be seen as ratifying the alternative treatment as equivalent to the standard of care. Make certain the patient knows, and the record reflects, that the alternative is not equivalent. This will help the clinician defend against later claims that the alternative care was offered as directly comparable to the standard of care. For each subsequent patient visit, be sure to re-offer the best option and record the patient’s repeated refusal.
When faced with a case in which there is no safe alternative to the standard of care, do not suggest one. —DML