The patient, who had rectal bleeding, wasn’t seen by a specialist for four months. But whose fault was that?

Mr. H was an experienced physician assistant in a family-practice clinic. He was mainly responsible for routine follow-ups with adults who had chronic diseases, such as diabetes and hypertension. One day, a 65-year-old man with both conditions came for a routine checkup and prescription refill.

He mentioned in passing that he had had an episode of rectal bleeding a month earlier. Instead of calling the clinic, which would have referred him to Mr. H immediately, he went to a minor-emergency clinic. The physician there found a bleeding hemorrhoid during a proctoscopy.

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The patient recounted this story as if he considered the matter closed, but a small voice in the back of Mr. H’s mind reminded him of the medical training aphorism: “All rectal bleeding is not hemorrhoids.” He did a rectal exam, which was negative except for an evenly enlarged prostate. Still, Mr. H thought that the situation should be taken one step further and asked the patient to come back and see his supervising physician, who was out doing hospital rounds.

Not until four months later did the patient return to see the physician, reporting a second incident of rectal bleeding and red blood mixed with his stool. The physician, who was unaware of the first episode, found out about it as he took a history. He immediately referred the patient to a gastroenterologist, who two days later performed sigmoidoscopy with a flexible scope. It showed a large fungating adenocarcinoma of the sigmoid colon. A CT scan of the abdomen showed local invasion, enlarged local lymph nodes, and probably secondary tumors in the liver.

Despite radiation and chemotherapy, the patient died two years later from widespread secondary tumors in the lungs and brain.

Soon, the lawyer in charge of the estate suggested the family consult a plaintiff’s lawyer. After investigating the case, the lawyer filed a suit against both Mr. H and his physician.

During depositions about a year later, the patient’s eldest son said that when his father had complained of rectal bleeding to Mr. H, “nothing was done.” He added that his father had endured considerable pain and suffering before he died.

For his part, Mr. H explained in greater detail the course of the problem, from the patient’s first visit to the minor-emergency center, his return to Mr. H, and the wait of four months before returning to be seen by the physician.

The physician described how he had immediately referred the patient to a gastroenterologist on becoming aware of the problem.

Experts for each side gave conflicting testimony. The plaintiff’s expert stated that if the patient had been seen by a specialist at first presentation, he would be alive and well today. The defense expert testified that the cancer was probably already advanced at first presentation and that intervention would not have altered the outcome. The case settled just before trial for $750,000.

Legal background

Plaintiff’s lawyers have worked hard to establish the principle that a patient’s failure to make an appointment or to follow instructions is the provider’s fault. A variant is the argument that the patient would have followed instructions if the provider had explained the possible consequences of ignoring them.

Most juries have rejected these arguments and have placed a proportion of the fault on the patient. Common sense tells us that patients must retain personal responsibility for their actions, and juries generally agree. But fewer than 5% of malpractice cases end up at trial. The majority settle after the depositions have been completed.

Lessons learned

Appropriate consultation, both in the office and with an outside specialist, is important for avoiding litigation. In this case, Mr. H’s supervising physician was not available for consultation, which led to a dilemma for Mr. H. He decided to ask the patient to schedule an appointment with the physician. By waiting four months instead of a few days to return to the clinic, the patient created a question of whether the delay allowed the tumor to spread. This provided a basis for the lawsuit that followed.

Several strategies might have helped. In an urgent situation, Mr. H might have asked the patient to come back after lunch or to simply wait for the physician to return. If the patient was unable to wait and the situation was not urgent, Mr. H could have made an appointment for the patient himself, thus ensuring that it was timely and demonstrating his concern.

The same strategy works with referrals to specialists: The best strategy (and probably good medicine) is to have a staffer call on the patient’s behalf and make the appointment. In the eyes of a jury, this action attests to the provider’s concern for the patient and his sense of urgency about the situation.