The trial was painful for everyone. The plaintiffs’ attorney introduced a four-hour video in which Mrs. C talked about how her daughter would soon be without a mother and her husband would lack a wife. Then the widower and Mrs. C’s mother took the stand, testifying tearfully about their loss and what it was like to have to watch her die.

The plaintiffs’ attorney next called an expert gastroenterologist, who described the symptoms of colorectal cancer. She said that Mrs. C should have been referred to a specialist or sent for a colonoscopy after her first appointment with Dr. E because her cancer was probably stage I or II at that time.

“Had the cancer been diagnosed then, when it was stage I, she would have had a 97% chance of survival,” the expert declared. “But by the time she was finally diagnosed, her odds dropped to 50%.”

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On cross-examination, the defense attorney focused on the likelihood that a woman so young would present with such disease.  “The  prevalence in people aged 20-34 is 1%, putting them at low risk,”  the expert explained.

“So would you say that it’s very unusual for a 24-year-old woman to have colorectal cancer?” the lawyer pressed.

“Yes, it is unusual. But that doesn’t mean it can’t happen,” the expert responded.

Later the defense attorney called his own experts to emphasize the point. Then Mr. K described the rectal exam and said he was sure the mass he palpated was hemorrhoids.

“How would you discern between hemorrhoids and cancer?” asked the plaintiffs’ attorney on cross-examination.

“I don’t know…I never felt cancer before,” Mr. K admitted.

The jury found for the plaintiffs, awarding Mrs. C’s estate $2.5 million, and a distraught Dr. E decided to retire.

Legal background

Sometimes settling a case is the best alternative. In this situation, it would have saved everyone a lot of pain, legal costs, and extra damages.

The state where this took place sets a cap on noneconomic damages, which was what the defense lawyer banked on when he refused the settlement offer. Economic damages are based on the income patients would have earned during a normal life span. In this case, Mrs. C had many productive years ahead of her. Even though she held a low-paying job, her earning potential was high because she was so young. 

The jury award consisted of $2 million in economic damages, $250,000 for pain and suffering during Mrs. C’s illness, and $250,000 for the family’s pain and suffering in the future.

Protecting yourself

As the plaintiffs’ expert noted on cross-examination, the prevalence of colorectal cancer in a woman Mrs. C’s age is very rare. But it’s not unheard of.

When an otherwise healthy young woman presents with Mrs. C’s symptoms five months after childbirth, hemorrhoids are the most likely culprit. Only in hindsight can Dr. E or Mr. K be faulted for not immediately considering an improbable alternative.

But when Mrs. C returned the third time without relief, they should have suspected something more serious might be afoot. They could reasonably be expected to have performed an anoscopy to confirm the presence of internal hemorrhoids.

Even if the odds are low, you must expand your differential diagnosis when a patient fails to respond to treatment for the most likely condition. Had Dr. E and Mr. K re-assessed their conclusions, the jury probably would not have held them liable for Mrs. C’s death.  They might even have saved her life.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.