A heavy smoker claims he complained of hoarseness but was ignored by his primary-care clinician.

Dr. F started his career in family practice. Success came a few years after he moved to a suburb that was growing by leaps and bounds because of its proximity to a large city. As he reached his 50s, Dr. F found that many of his patients had aged along with him and had developed a new set of medical problems to go along with their advancing years. One such patient developed carcinoma of the larynx and sued Dr. F for missing the diagnosis.

The 70-year-old patient had smoked two packs of cigarettes a day for 30 years.


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Throughout the four years of their physician-patient relationship, Dr. F had repeatedly tried to convince the man that his habit would eventually catch up with him. The patient simply replied, “It hasn’t yet!” and continued to smoke. Still, Dr. F persisted. After three years of warnings, the patient finally agreed to try quitting when a close friend died of lung cancer. Amazingly, he was successful, and Dr. F was pleased that he had perhaps added a few more active years to the man’s life.

At this point, accounts of the patient’s clinical course begin to differ. The patient later claimed that he complained to Dr. F of hoarseness after quitting and even demonstrated the problem in the clinician’s office. He said that Dr. F had ignored his symptoms until he insisted on being referred to an ENT specialist after a year of hoarseness. Dr. F testified that the patient had not complained of hoarseness until one year after he had given up smoking, at which time the clinician had made an immediate referral to an ENT specialist.

Whatever the actual scenario, the patient saw an ENT physician about one year after his last cigarette. The specialist performed a laryngoscopy and biopsied a suspicious lesion, which turned out to be stage-4 squamous cell carcinoma. The patient sued Dr. F, claiming that the delay in referral had caused him to surrender any chance of a cure. In his deposition, the patient testified that he had been complaining of hoarseness but had not been referred to a specialist until he himself had insisted upon it. After two years of discovery, Dr. F was suffering from a severe case of litigation exhaustion. He was ready to settle. The opposing parties were unable to come to terms, however, despite several offers and counteroffers between the lawyers.

At trial, the patient repeated his claim that Dr. F had delayed almost a year before referring him to an ENT specialist and had done so only upon the patient’s vigorous insistence. Dr. F, on the other hand, cited his notes, which showed the first mention of the hoarseness came about one year after the patient quit smoking. Transparencies of the clinical notes were placed on an overhead projector and displayed on a large screen as Dr. F led the jury through the abbreviations and layout used in his records. The defense experts argued that the carcinoma of the larynx was so advanced that it was likely present when the patient gave up smoking and that early referral would have made little difference in the outcome. The jury returned with a verdict in favor of Dr. F.

Legal background

Theoretically, the plaintiff’s lawyer carries the burden of proving his case by a preponderance of the evidence. In practice, the system works differently. After the patient makes his accusations of negligence, the defending clinician is forced to come up with some sort of response or alternative theory of the case. Jurors tend to believe medical professionals, especially when their testimony is supported wholly or in part by the clinical notes. These are treated with considerable respect by most jurors. In this case, Dr. F was able to support his response to the patient’s accusations by referring to his notes, which indicated quite clearly that the first mention of hoarseness as a symptom occurred immediately before the patient was referred to the specialist.

Risk-management principles

Certain patient groups represent a higher risk for adverse events—and also for litigation. Long-term smokers suffer from some disorders (especially cardiovascular disease and cancer) more frequently than nonsmokers. Thus, each clinician must determine which screening tests and routine questions are appropriate for his or her patient’s risk group, both as a risk-management strategy and to detect early disease.

Patient questionnaires are useful ways of gathering data and can be completed in the waiting room on the patient’s first visit. One of the advantages of these documents is that they are in the patient’s own handwriting. This is a big asset in the minds of many jurors. Computer-endowed practices can use a terminal in the waiting area to collect patient data (including past medical history and presenting symptoms) and alert the physician to diseases for which the patient is at risk.

In this case, the difference in testimony between the clinician and the patient was resolved by referring to Dr. F’s clinical notes. The situation could have been just as effectively managed if the patient had filled out a questionnaire at each visit with regard to his chief complaints.