Distracted by acute pneumonia, a PA forgets to order follow-up tests after a patient’s chest x-ray.

Ms. F, 47, was an experienced physician assistant who volunteered at a clinic for indigent patients. A case that originated in the clinic, which was sponsored by a group of churches in her area, eventually resulted in a malpractice suit.

The patient was a 62-year-old smoker, who came to the clinic with a cough, fever and chills. On examination, Ms. F found rales throughout both lungs, though more prominent on the right, and a dull area over the upper segment of the right lower lobe. This finding, combined with the woman’s 101.5°F fever and chills, led Ms. F to recommend a chest x-ray to look for consolidation indicating lobar pneumonia.

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Since the church clinic did not have an x-ray department, Ms. F referred the patient to a local radiology clinic. The subsequent chest x-ray showed right lower-lobe consolidation, which was treated urgently with a short hospital admission, rehydration, and antibiotics.

The x-ray report also mentioned a “1.5-cm density at the left base. Neoplasm cannot be completely excluded. If clinically indicated, CT scanning of the chest could be performed.” But in the urgency to treat the immediate problem, this finding was overlooked. It was to come back and haunt Ms. F.

The patient followed up at the family practice clinic where Ms. F worked. She made a good recovery after her discharge from hospital. The chest x-ray report remained buried in her chart until almost a year later, when Ms. F came across it while riffling through the records.

After consulting her supervising physician about following up on the chest lesion, Ms. F ordered a repeat chest x-ray. The lesion had enlarged several times over. Diagnostic testing showed that it was a malignant, stage 4 squamous cell carcinoma that had spread to the bones and local lymph nodes. In expert testimony at the eventual malpractice trial, the patient’s chance of survival was estimated at 1%.

A year later, the woman died from secondary tumors. Her family consulted a plaintiff’s lawyer, who called for the chart and had it reviewed by an internist. The expert, not surprisingly, found that Ms. F and her supervising physician caused a “loss of chance of a cure” by not following up quickly on the small left lung mass mentioned in the x-ray report. The plaintiff’s lawyer then filed a malpractice suit against Ms. F and her supervising physician.

The case progressed through paper discovery to depositions. Ms. F stated that in view of the patient’s more urgent problems, ignoring the small lung mass did not constitute malpractice. Moreover, she said, the lesion was probably due to old lung inflammation, such as histoplasmosis, the likely cause in most patients. The plaintiff’s expert contradicted this testimony, asserting that every lung lesion should be followed up with repeat chest x-rays or a CT scan of the chest.

The case failed to settle and proceeded to trial about two years after it had been filed. Testifying before a jury, Ms. F recounted how she had accompanied the patient from the church clinic to the hospital and from the hospital to the family clinic where she worked. She described the patient’s poor condition at their first encounter and how treating the woman’s pneumonia might have saved her life.

Ms. F explained that chest lesions of the size seen in the patient were common in people of her age and that most of them are benign inflammatory lesions. Admitting that she had missed following up the chest lesion first noted on chest x-ray, she denied that the standard of care required a CT scan for every lesion.

She apparently impressed the jury members as a caring, competent and compassionate professional because they repeatedly tried to find a way to let her off the hook. The first time they returned to the courtroom, they announced a compromise verdict. It held Ms. F liable for the patient’s death but found that the “loss of chance of a cure” was zero percent and awarded no damages.

The judge looked at the decision and scratched his head. “I can’t see how this can make sense,” he growled. “You can’t have liability without some percentage loss of chance in a case like this. You’ll have to go back and try again. This time see if you can reach a decision that holds together.”

The jurors dutifully returned to the jury room and deliberated into the following day before arriving at a new verdict: Ms. F was liable and the loss of chance of survival was estimated at 5%. Again, no damages were awarded.

This time the judge accepted the verdict as internally consistent. But the plaintiff’s lawyer appealed. The appellate court threw the verdict out and ordered a new trial. “You can’t have loss of chance of survival without some amount of money damages,” the appellate judge ruled.

The case settled shortly afterward for $56,000.

Legal background

Although they seldom use it, judges have the power to reverse or overrule a jury verdict when it is internally inconsistent. However, a verdict that appears inconsistent to a judge or lawyer might be perfectly logical to the jury itself. As a result, there is a variety of opinion as to what degree or type of inconsistency is necessary to allow a jury verdict to be overruled.

In this case, the judge rejected a verdict that found Ms. F to be at fault without causing the loss of chance of survival. He then accepted a verdict that found fault with a 5% responsibility for the loss of chance of survival but assessed no damages. The appeals court, in turn, rejected this verdict.

In general, judges will accept a jury verdict that finds fault but sets the damages at zero, reasoning that substandard medical care (i.e., fault) can sometimes be harmless. In this case, however, the appeals court judges felt that a dead patient and a liable provider logically added up to some amount of damage done. Had the jury awarded $500, the verdict would have been “appeal-proof.”

Lessons learned

The “lurking lung lesion” is a small but constant source of malpractice claims. Although most small, dense lesions represent old scarred infections, occasionally there is a malignant change to which a plaintiff’s lawyer can point and blame the provider for failing to detect in a timely way.

The most effective risk management strategy for incidental lung lesions is to note them in the chart, discuss them with the patient, and use a “tickler” system to remind yourself when it is time to order a follow-up chest x-ray. If the patient fails to follow up, you can show a jury you have gone above and beyond to alert the patient to the possible significance of the lesion.

Juries typically start with considerable reservoir of sympathy for providers. In this case, Ms. F was able to build on the initial good impression she made to the extent that the jury seemed determined not to penalize her for her role in the case. This result confirms research that has found jury decisions are partly based on emotion, in addition to the evidence. Most defense lawyers look for the winning combination of a sympathetic provider—who can exhibit caring, competence, and compassion—and a factual case the jury can support.