At a glance:

  • Contributory negligence becomes an issue when the injured party’s failure to exercise due care contributes to the injury.
  • The physician assistant should have noted in the file that he was referring his patient to a dermatologist. He also should have documented the mole that he found on the patient’s back.
  • The dermatologist should have called the patient’s PCP about having the mole removed and explained the situation clearly to the physician assistant.

Mr. L was a physician assistant working with a sole practitioner who specialized in family practice medicine. The physician was only a few years older than Mr. L, and they shared a friendly relationship both in and out of the office. In his 10 years at the practice, Mr. L had developed a following of patients who would frequently make appointments directly with him. One of these patients was Mr. E. This 41-year-old man came to the clinic occasionally for minor complaints and once a year for a general physical. One day, Mr. E stopped in for an influenza shot and asked Mr. L for a referral to a dermatologist.

“My wife wants me to get my skin checked out,” Mr. E told the PA. “I have a couple of spots on my back.”

Mr. L took a look and agreed that it wouldn’t be a bad idea to visit a dermatologist. He asked the office manager to get him the business card of the dermatologist who was on Mr. E’s health plan and wrote out a referral.

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One week later, Mr. E visited the dermatologist, who documented a mole on Mr. E’s back measuring 6 mm in diameter. “I will get in touch with your primary-care practitioner [PCP] about this,” the dermatologist told the patient. After Mr. E left, the dermatologist sent a letter to Mr. L’s practice recommending that the mole be removed. The letter was opened by the office manager and placed in Mr. E’s file, but neither Mr. L nor the physician he worked with ever looked directly at the letter. The dermatologist assumed that the PCP had handled it, and Mr. L assumed that once the patient had been referred to the dermatologist the case was no longer his concern.

Six years later, Mr. E returned to the dermatologist for a skin check. The original dermatologist had retired, and his partner was now running the practice. The new dermatologist examined Mr. E’s back and documented two cysts and the mole that had been noticed six years earlier. However, since more than five years had passed following the original appointment,

Mr. E’s first report had been warehoused, and the dermatologist did not realize that the mole was now more than double the diameter it had been previously. He recommended to Mr. E that it be monitored. A few months later, Mr. E’s wife noticed that the mole had changed color. He returned to the dermatologist’s office to have it excised and was soon diagnosed with melanoma. The skin cancer had already metastasized to other areas of his body, including his brain. 

Over the following year, Mr. E underwent radiation, surgery, and chemotherapy, all of which proved unsuccessful. He passed away one year after the cancer was diagnosed.

Mr. E’s wife met with a plaintiff’s attorney, who agreed that the mole should have been removed six years before the procedure was actually done. “There is a great deal of fault here,” said the attorney. “The original dermatologist should have removed the mole or contacted the PCP and told him that it needed to be removed. The PA who wrote the referral should have followed up afterward. It is unbelievable that he saw your husband for six years and never asked about the dermatologist or looked at the mole himself. The PCP, who should be supervising the PA, never even looked in the file to see the letter.” 

When Mr. L heard that his patient had succumbed to skin cancer, he pulled Mr. E’s file and looked through it. Sure enough, tucked in the back was the letter from the original dermatologist advising removal of the mole. Mr. L felt a combination of guilt and panic as he realized that his carelessness might have contributed to the death of the patient. When he was notified that he was being sued for medical malpractice, he was not surprised. His employer and the two dermatologists were also named in the suit.

Mr. L’s employer was furious. The physician lectured Mr. L about the necessity of reading files completely and expressed his displeasure that such an oversight could have occurred.

Before the trial began, all the parties met for a conference, and the case was ultimately settled for $2.8 million.