A woman’s symptoms persisted for almost a year before her cancer was finally diagnosed in an ED.

Mrs. C was a 42-year-old physician assistant at an agency that ran a free clinic in a city in the Northeast. The wide variety of patients presented with a broad range of conditions, a facet of the job that she enjoyed tremendously. But one unusual case—of peritoneal carcinoma—resulted in far more grief than satisfaction.

The patient, a 47-year-old widow who worked in a self-service laundry, had two adult children. She came to the clinic complaining of increasing and chronic abdominal pain and distension. Weighing 170 pounds, the woman reported that she had gained 15 pounds in the previous six months. She also complained of gastroesophageal reflux disease (GERD) and urinary scalding.

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Mrs. C was puzzled at this constellation of symptoms and could account for them with only two diagnoses: indigestion or UTI. She started the patient on a proton-pump inhibitor and a urinary antibiotic, asking her to come back a week later for a follow-up.

The woman returned nine times over the course of the next year, always with similar and increasing complaints. Mrs. C referred her to the gynecologist who came to the clinic once a month. That examination was normal, and the specialist could not account for the abdominal distension except to note that he, too, had “increasing abdominal distension” as he aged. Mrs. C continued to treat the patient for GERD and an apparent UTI, without success.

One year after her first visit, the woman went to an emergency department (ED) and underwent a peritoneal tap. The fluid that was removed revealed stage III peritoneal carcinoma, possibly secondary to ovarian implant carcinoma.

The patient was then referred to an oncologist, who performed additional tests and treated the carcinoma with intraperitoneal and systemic chemotherapy. The chemotherapy worked at first, but the woman had three recurrences at shortening intervals. After she received the first bills for her hospital admission and chemotherapy, the woman consulted a plaintiff’s lawyer. He called the clinic for her chart and sent it to an expert oncologist for review. The expert criticized Mrs. C’s management of the case, saying, “It was an obvious case of malignant ascites caused by intraperitoneal carcinoma.”

Upon receiving this report, the plaintiff’s lawyer filed a malpractice suit against Mrs. C and her supervising physician. He later added the gynecologist and the clinic itself as defendants. After reviewing the charts and other documents, the lawyers scheduled depositions to take sworn preliminary testimony from all the parties and expert witnesses about a year after the case was filed.

By the time her malpractice case went to trial, the patient had been given a 30% chance of surviving five years. Now very frail, she outlined how Mrs. C had failed to manage the case effectively and gave her “treatments that never worked.” She blamed Mrs. C for the delay of almost a full year before the cancer was diagnosed. The plaintiff’s expert oncologist then testified that if the carcinoma had been diagnosed and treated following the initial visit, the patient probably would have stayed in remission.

Mrs. C gave her deposition next. She worked through her clinical notes, describing each visit, her consultations with her supervising physician, and her referral to the gynecologist.

After her deposition, one of the defense lawyers moved to have the case dismissed, citing a state law that shielded government employees from lawsuits. The judge dropped the case against the clinic and the gynecologist, who was on the city payroll. But the magistrate ruled that Mrs. C and the supervising physician were employed by the agency that ran the clinic, not by the government directly. Consequently, the case against them proceeded to trial.

Sitting in the courtroom next to her lawyer, the patient looked pitifully weak. It was obvious that she did not have long to live, and her appearance provoked considerable sympathy with jury members. After listening to her story and to the plaintiff’s expert oncologist, they heard from Mrs. C.

She again described each visit and said she had been treating the patient symptomatically, without extensive investigations or referral except to the gynecologist. The defense expert then explained that once ascites forms with an intraperitoneal carcinoma, the patient’s prognosis is poor. Therefore, the delayed diagnosis made little, if any, difference in this patient’s condition.

But the jury did not see it that way, finding against Mrs. C and awarding the woman $400,000. However, because of a previous high/low agreement between the attorneys, she got only $200,000.

Legal background,

In America, anyone can get sued—except the government. Ostensibly, this is to preserve public funds, but many consider it a way for the government to avoid responsibility for its actions.

In most states and in the federal government, this general rule has been modified through legislation that allows suits against government entities in certain circumstances but limits awards to between $100,000 and $500,000. Because of the complexity and legal niceties of the contract between the city and the clinic, Mrs. C and her supervising physician ended up facing the jury, while the others in the lawsuit had their cases dismissed.

High/low agreements between the plaintiff’s and defense lawyers are common in litigation as a method of reducing risk. The lawyers set upper and lower limits for judgment awards that will be enforced no matter which side wins. These agreements are kept from the jury and judge, but both the plaintiffs and defendants must consent to them. In this case, the lawyers agreed that the woman would receive no more than $200,000, but not less than $50,000 (in the event of a defense win). Because of this agreement, the $400,000 award was halved.

Protecting yourself

Early referrals are an important risk-management tool for primary-care providers, but they must be handled with care. Overreferral drives up costs and inconveniences patients, while underreferral can create risks for the patient and possibly eventual litigation, as this case shows.

Mrs. C consulted her supervising physician promptly and referred the patient to the gynecologist, but perhaps she should have consulted the supervising physician again, when it was apparent that her symptomatic treatment was not successful. Doing so might have avoided the delay in diagnosis.

Risk management continues even after a lawsuit is filed. High/low agreements allow insurance companies to cap any losses at the cost of a minimum payment to the plaintiff’s lawyer even if the defense wins. In this case, the “insurance policy” of a high/low agreement was worth the $50,000 “premium” that the insurance company would have had to pay if the defense had won.