Legal Pearls: A Physician Disregards His Patient's Pain and Discomfort

One day, a new patient came to see Dr D for an annual examination. Mr M was in his mid-40s, and in excellent health. He only had one concern: a lump on his upper back, that had been noted by his previous physician to be benign.

Dr D examined the lump and noted that it was firm but smooth, and measured 5 to 6 cm in size. He agreed that it was probably benign.

Three months later, the patient returned. The physician noted that the lump had increased slightly in size to 7 cm and was still smooth. He continued to believe it was benign and ordered no further workup.

A year later, the patient returned and reported that the lump was still there and still painful, but again, Dr D noted it to be benign and ordered no follow-up or referral.

Four years after his initial examination, Mr M visited another physician. Unfortunately, the subsequent workup led to the discovery of a primary cancer in the patient’s left upper back, which had spread to his lungs.

Was Dr D negligent?

(Discussion on next page)

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.

Clinical Scenario

Dr D, aged 58 years, was a general practitioner who worked in a small practice with 2 other physicians. The doctors had been in practice together for about a dozen years and employed a nurse practitioner and several medical assistants.

One day, a new patient came to see Dr D for an annual examination. Mr M was in his mid-40s, married with 3 children. He told the physician that he was a regular runner, and he attributed his avoidance of a middle-aged potbelly to his daily exercise. The patient was in excellent health and only had one concern, which he voiced to the doctor.

“So, I’ve got this lump on my upper left back that I’m a little worried about,” said Mr M. “Actually, I’ve had it for probably 10 years, and other doctors have looked at it and told me it was benign, but I thought I should mention this to you.”

Dr D examined the lump and noted that it was firm but smooth, and measured 5 to 6 cm in size.

“I think the other physicians were correct that it’s benign,” he told the patient, “but I’m going to order imaging tests, just to be sure.”

The radiograph came back normal, and the physician filed it away in the patient’s record.

Three months later, the patient returned. This time, he complained that the lump on his back was now painful. The physician noted that the lump had increased slightly in size to 7 cm and was still smooth. He continued to believe it was benign and ordered no further workup.

A year later, the patient returned for his annual examination. Mr M reported that the lump was still there and still painful, but again, Dr D noted it to be benign and ordered no follow-up or referral.

Another year went by. The patient had now been seeing Dr D for over 3 years. Again, the patient returned for his annual examination with the physician. Again, he complained that the lump was causing pain and discomfort. Dr D, however, continued to believe that the growth was benign.

The following year, now 4 years after Mr M’s initial appointment with Dr D, the patient decided to go to a new physician. He told the new physician that the lump seemed to have increased in size and was now bothering him when he was sleeping and exercising. The new physician expressed concern about the lump on the patient’s back, noted that it measured 5.5 × 7.5 cm, and referred the patient to a surgeon for further evaluation of the growth.

Unfortunately, the subsequent workup led to the discovery of a primary cancer in the patient’s left upper back, which had spread to his lungs. The conclusion was a soft-tissue sarcoma, although the oncologists were unable to determine the exact type of sarcoma.

Mr M underwent aggressive treatment from a team of cancer specialists in several hospitals. His treatment included radiation therapy and multiple surgeries. Despite the treatment, the cancer continued to progress and spread throughout both of the patient’s lungs, his liver, pancreas, and brain.

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On the advice of a friend, Mr M sought the counsel of a plaintiff’s attorney to discuss whether he might have a viable medical malpractice case against Dr D. After having an expert review the records, the attorney told Mr M that he had a strong case against the physician.

The attorney filed a lawsuit against Dr D, alleging that he was negligent when he failed to refer the patient for a diagnostic workup of the lump, thereby causing a 4-year delay in diagnosis and treatment of the soft-tissue sarcoma. The lawsuit also alleged that the delay allowed the cancer to progress from an early-stage curable cancer to an advanced-stage incurable cancer at the time of the eventual diagnosis.

Dr D met with the attorney provided by his medical malpractice insurance. The attorney was grim. “This doesn’t look good,” the attorney told the physician. “My medical expert looked at the records and doesn’t understand why you didn’t refer the patient to someone as soon as he began complaining that the lump had become painful, or certainly once you saw an increase in the size of the lump.”

The attorney advised Dr D to settle. “The patient has end-stage cancer,” he said. “The jury will be sympathetic. This would not play out well at trial.”

The case settled before trial for over $4 million. The patient died shortly after the case was settled.

What’s the “Take-Home”?

The most common cause of medical malpractice claims in primary care is failure or delay in diagnosis. In adults, the 2 most commonly missed or delayed diagnoses are cancer (most commonly breast, colon, melanoma, lung, and female genital tract) and myocardial infarction.

A 2013 epidemiologic review of malpractice claims in primary care, published in the British Medical Journal, revealed the most common causes of delayed or missed diagnoses: failure to order a diagnostic test, create a proper follow-up plan, or adequately obtain a history or perform a physical examination, and incorrect interpretation of a diagnostic test result.1

In this case, Dr D committed several of these mistakes. He failed to order a diagnostic test aside from the initial radiograph. He didn’t create any sort of follow-up plan, even when the patient kept returning with continued complaints. And the physician relied too heavily on the initial radiograph, letting it lull him into thinking the lump was benign and not ordering any further testing. The patient’s continued and increasing pain and discomfort, as well as the increase in size of the lump, should have spurred Dr D to do something.

Dr D’s attorney was correct that he would have a difficult time in court, particularly in front a jury who would likely be sympathetic to Mr M and blame the physician for repeatedly dismissing the patient’s complaints.

Bottom Line – If a patient has a problem that is not resolving and is continuing to cause the patient discomfort, the physician must act. That action can be a referral to a specialist, ordering more testing, or even adopting a “wait and see” attitude, provided that the physician monitor the patient closely and keep excellent notes. But doing nothing, as Dr D did in this case, is the wrong option for both the patient and the physician.  

Reference:

Wallace E, Lowry J, Smith SM, Fahey T. The epidemiology of malpractice claims in primary care: a systematic review. BMJ Open. 2013;3(7):e002929. doi:10.1136/bmjopen-2013-002929.