Malpractice Case: One Way to Defend a Missed Diagnosis

Gordon T. Ownby

Disclosures

February 01, 2019

Medscape Editor's Key Points:

  • A "causation defense" states that the physician may not have diagnosed a disease fast enough but it did not affect the patient's outcome.

  • This defense requires much explanation to jurors.

  • It's important for physicians to have a good medical record to work with for this defense.

In a Causation Defense, It's All About the Details

Many times, a physician's attorney needs to adopt a "causation defense" against a claim of medical malpractice. This means that although a physician may have breached his or her duty to timely diagnose a disease, that error did not change the patient's outcome. A causation defense argument is most frequently used in cancer cases when the attorney can show that even if the physician had spotted the disease at the first opportunity, the cancer's course was so well along that the patient's fate was already set.

As one can imagine, this takes careful explanation to jurors who then must be trusted to apply the medical testimony to make the right decision. When weighing whether to pursue a causation defense, the physician and lawyer need a good record to work with.

Dr. IM, an internist, saw a 72-year-old gentleman after the patient's original treating physician retired. At that visit, the first of a two-part history and physical, Dr. IM had not yet read the chart left by the retired physician but relied on the patient to provide an accurate medical history. At the subsequent physical a week later, Dr. IM ordered a blood test and referred the patient to a cardiologist because of some EKG abnormalities. Dr. IM told the patient to return in 1 month.

According to Dr. IM, the lab's initial report to him was not a complete result. In particular, the patient's PSA value was not included. Dr. IM's practice was to not review lab results until the full report is received. As it turned out, the patient failed to return a month later as directed and Dr. IM did not follow up on the missing portion of the report. Several months later, the patient called with urinary complaints, for which Dr. IM referred him to a urologist.

After treating the patient for epididymitis-orchitis, the urologist eventually ordered his own PSA test. Following that test, the urologist diagnosed the patient with prostate cancer. After learning of the diagnosis, Dr. IM obtained the complete lab result from the test he had ordered 12 months earlier.

The patient and his family later sued Dr. IM for failing to diagnose cancer.

According to Dr. IM, the PSA result from the test ordered the year earlier, at 5.2, was not abnormal for a man in his 70s. Even if he had seen the result contemporaneously, Dr. IM said, he would not have done anything differently.

The plaintiff's attorney disputed the normality of that 5.2 result, especially in light of the patient's earlier values contained in the chart left by the retired physician. Those earlier tests showed values of 1.0 and 1.2 from 4 and 2 years out, respectively.

The patient's type of cancer looked particularly virulent—the PSA for the test ordered by the urologist was 502—thus raising the possibility of a causation defense.

But putting forth a causation defense asks a lot of a trier of fact (in this case, a panel of arbitrators). Here, not only would the patient's attorney have brought in an expert witness to say that something could have been done for the patient a year earlier, the arbitrators would also have to excuse the doctor for failing to simply follow up on the incomplete lab report. The physician and the patient resolved the matter informally prior to arbitration.

In weighing a causation defense, a jury may do the right thing when a physician simply makes the wrong decision. Getting a defense award out of a fact pattern showing a physician failed to obtain the basic information to make that decision, however, may be too much to ask.

This case comes from Medicine on Trial, originally published by Cooperative of American Physicians, Inc., to provide risk management lessons from litigated case histories. The article was originally titled "For a Causation Defense, Every Detail Counts."

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