Mr. N then contacted the defense attorney provided by his malpractice insurance. The attorney subpoenaed the records, depositions were taken, and medical experts were hired. 


As the case drew closer to trial, both sides prepared their testimony. Mr. N and his medical expert were prepared to testify that because neither Mr. N nor the ENT could palpate a lump in Mrs. G’s throat, a biopsy was not warranted. The expert was prepared to testify that acid reflux is the most common cause of Mrs. G’s symptoms and that the diagnosis was reasonable and met the standard of care. The plaintiff’s experts were prepared to testify that Mr. N had failed to recognize the signs and symptoms of thyroid cancer and failed to order the right tests. They were also ready to testify that because of the delay in the patient’s diagnosis, the cancer was allowed to grow, resulting in tracheal stenosis and difficulty breathing. 



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Just before trial, Mr. N’s attorney called him and said, “the plaintiff is willing to settle for the limits of your policy.” When Mr. N asked the attorney what he advised, the attorney told him that settling would be the wiser choice. The case settled before trial.


Legal background


Trials are expensive, stressful, and extremely time consuming, but worst of all, the outcome is unpredictable—particularly when a jury is involved. Unless it’s a very clear-cut case (which is relatively rare), it’s hard to know how a jury may react. Juries are made up of people, and people, whether they intend to be or not, are swayed by emotion and other factors. 


The vast majority (as high as 90%) of medical malpractice cases are settled out of court. Aside from the cost of trial and the chances of losing, the emotional toll of being a defendant in a medical malpractice case is significant. Even if a clinician wins at trial and is found not liable, the psychological cost can be high. 


Protecting yourself


Mr. N was wise to refer the patient to an ENT to further evaluate her symptoms. However, when the ENT’s workup revealed nothing, and the patient continued to have symptoms after Mr. N’s diagnoses and treatments for acid reflux and sleep apnea, Mr. N should have looked further.


Mr. N was correct that acid reflux was a good guess, and a common cause, for Mrs. G’s symptoms. However, the most common cause for symptoms is not always the right one. In this case, when the patient’s complaints did not resolve or improve with treatment, the clinician should have explored alternative theories for why they were occurring. Dismissing, or negating, the complaints of a patient known as a “complainer” is dangerous for a clinician, because one never knows if those complaints might be legitimate and serious, as they were here.

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