Why Giving the Right Advice Can Get You Sued

Jeffrey Segal, MD, JD


June 11, 2015

Is Your Advice Strong Enough?

In 2010, a gynecologic surgeon was sued for negligence. The Connecticut State Medical Society summarized the case on its website[1]:

The case claimed that during a preoperative consultant for the removal of fibroid tumors, [the doctor] failed to "strongly advise" the plaintiff that her family history of breast cancer greatly increased her risk for developing ovarian cancer. Although clear from the medical records that the risk of ovarian cancer was discussed, the plaintiff claimed that she was not "strongly advised" to undergo removal of her ovaries. The plaintiff subsequently developed ovarian cancer.

The patient had an extensive family history of breast cancer.[2] Her mother, maternal grandmother, and two maternal aunts all died from the disease. In 1981, although not diagnosed with breast cancer, the patient had a prophylactic bilateral mastectomy to reduce her long-term risk. At that time, genetic testing for breast cancer did not exist; DNA testing first became available in 1985.[3]

In 2005, the patient had an elective partial hysterectomy to treat uterine fibroids, a noncancerous condition. The surgeon had been treating this patient for 20 years.

At the preoperative consultation, the surgeon explained to the patient that, although she had a family history of breast cancer, that history, unless supplemented by genetic testing, did not point to an increased risk for ovarian cancer. The patient's ovaries were healthy, and removal might result in unpleasant side effects, including early menopause and painful intercourse.

The doctor did not order DNA testing, which was then available, and the patient, based on what the doctor had told her, decided against having an oophorectomy. The hysterectomy went well. One year later, however, the patient was diagnosed with late-stage, terminal ovarian cancer that had spread to her abdomen. At the time the hysterectomy was performed, the patient's ovaries appeared healthy. Removal of the ovaries at that procedure would have been for prophylactic reasons only.

The plaintiff sued, alleging that the surgeon failed to provide proper gynecologic care, failed to properly treat her, failed to strongly advise her to have her ovaries removed during the hysterectomy, failed to remove her ovaries, and failed to instruct her that her family history of cancer greatly increased her risk of developing ovarian cancer.[2]

At trial, "[the] court permitted the plaintiff to elicit testimony from the [doctor] concerning his knowledge, or lack thereof, with respect to information that could be obtained from the [genetic] screening test but subsequently precluded the [doctor] from eliciting testimony showing that, had the test been conducted on the plaintiff in 2005, the results of that test would not have shown that she had a genetic mutation that predisposed her to ovarian cancer."[2]

In other words, the patient's lawyer was allowed to pepper the doctor with detailed questions about breast and ovarian cancer, as well as genetic testing, but the doctor was not allowed to introduce as evidence that the genetic test, had it actually been performed, would have been interpreted as not predisposing the patient to ovarian cancer.

The patient never alleged that the doctor negligently failed to order the genetic test. The patient argued that the doctor had failed to advise her that, in the face of a strong family history for breast cancer, her ovaries should also be removed.[2]

The jury awarded the patient $4 million in damages.

As is the norm, the doctor only had $1 million in professional liability coverage. He appealed. In August 2012, the Supreme Court of Connecticut ruled. The judgment was affirmed.

As the Connecticut State Medical Society reported[1]:

"In May of 2013, the plaintiff's law firm ... executed on the judgment, and with no notice seized [the doctor's] personal and business bank accounts and placed a lien on his real property in an effort to collect the over $4 million owed under the judgment."


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