Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Chest X-Ray Filed Before Clinician’s Review
In anticipation of a cardiac catheterization, a 76-year-old Illinois man underwent a chest x-ray in March 2003. The x-ray showed a 4-cm mass in the left lung, which the radiologist identified as bronchogenic carcinoma.
A staff member in the office of the defendant physician who had ordered the x-ray believed incorrectly that the physician had already seen the results and filed the report in the patient’s chart. The report was not seen again until after a diagnosis of lung cancer had been made in September 2003. By that time, the cancer had metastasized to the man’s liver, pelvis, hip, femur, spine, and shoulder. He died 18 days after the diagnosis was made.
The plaintiff claimed that if the cancer had been diagnosed earlier, the decedent could have been made comfortable during treatment, and he would have survived longer. The defendant admitted liability but argued that the reduction in the decedent’s life expectancy was minimal because his cancer was in an advanced stage in March 2003. The defendant claimed that the net increase in the patient’s pain and suffering was minimal because he would have undergone chemotherapy and radiation if a diagnosis of cancer had been made earlier.
According to a published report, a $1 million verdict was returned.
This case illustrates just how angry a jury can become when “the system” fails. The plaintiff’s decedent was elderly, with established bronchogenic carcinoma, and the plaintiff did not allege that the six-month delay between the study and diagnosis would have permitted a chance for cure—but only modest improvements in life expectancy and comfort. Nevertheless, the jury returned a substantial verdict.
Jurors, like patients, expect study results to be flawlessly communicated to and between clinicians. As clinicians, we must ensure that adequate systems are in place to guarantee that study results are reviewed in a timely manner. I suspect that many of us have received a long-delayed abnormal result and endured the unpleasant experience of contacting the patient to see what shape she or he was in.
Study findings simply cannot be filed until they have been reviewed and acknowledged by a clinician. If this is a problem in your practice, work to establish a system. Any system adopted must assign responsibility for the day-to-day flow of study results to avoid the “pop fly syndrome”—that is, a situation in which everyone thinks someone else is taking responsibility for a study, and the ball is dropped.
A chosen system should also address special circumstances: Miscommunication is known to be more common during holidays, vacations, extended clinician leaves, and use of moonlighters. Consider designating one individual specifically to confirm that abnormal lab results are reported to clinicians, then build two or more additional complementary layers as a “safety net” for the practice. Redundancy can hedge against errors. —DML
Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.
The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.
After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.
The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.
One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.
The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.
The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.
According to a published account, a defense verdict was returned.
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.
As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.
Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.
When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.
Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.
Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.
Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML