After missing early signs of colon cancer, did heneglect to recommend a colonoscopy as well?

Dr. D, 62, was a general practitioner in a quiet Midwestern suburb. He enjoyed his reputation as a kindly, old-fashioned family doctor just as his father and grandfather had before him.

But after 25 years, he was ready to wind down. He’d already begun cutting back on the number of patients he was seeing and was looking forward to retiring within a few years and spending more time with his grandchildren.

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One day, Mr. P, a 55-year-old salesman, came in for his annual checkup. None of his previous five exams had shown anything unusual. This time around though, he complained about lower back pain that got worse when he was bending or sitting. He also mentioned that he’d been having some pain on his right side and that he’d lost six pounds.

“No harm in dropping a few pounds,” remarked Dr. D. “I have lots of patients who could stand to lose a few.” The two men shared a chuckle, and Dr. D referred Mr. P to a chiropractor.

Dr. D didn’t hear from Mr. P for more than 18 months, when the patient came in for another checkup and again complained of right flank pain and significant, unexplained weight loss.

Concerned that this might be something more serious than he’d initially thought, Dr. P ordered a series of x-rays to identify any kidney, ureter, or bladder issues. The results revealed a considerable amount of solid fecal material in the ascending and transverse colon.

When the patient returned to Dr. D’s office shortly after the x-ray reports arrived, he told the doctor that he’d been experiencing constipation and abdominal pain and had lost another eight pounds. Taking a wait-and-see approach, Dr. D told Mr. P to come back in few weeks and warned him that a barium enema might be necessary in the future.

Six weeks later Mr. P returned, this time complaining of abdominal pain and diarrhea. Within a few days Mr. P stopped having bowel movements altogether, and Dr. D administered a barium enema. But the situation did not improve, and the next day Mr. P had increasing abdominal distension, pain, and blood in his stool. At that point, Mr. P’s wife took him to the local emergency department, where he was admitted and given another barium enema. It revealed a complete obstruction of the distal sigmoid colon, a finding consistent with several diagnoses.

Carcinoma is the most serious, and flexible sigmoidoscopy confirmed the diagnosis of colon cancer.Mr. P underwent an immediate right-transverse colostomy for obstructing carcinoma of the sigmoid colon. Three days later, a CT scan showed at least eight nodules on the right and left lobes of his liver, with the one on the right measuring 5 cm. A follow-up scan revealed possible lung metastasis to the right lower lobe.

Less than a week after being admitted, Mr. P was discharged from the hospital with a diagnosis of terminal colon cancer. Although he went through several courses of chemotherapy, he eventually failed to respond to treatments and died two years after his surgery. He was 58 years old.

Mr. and Mrs. P had been married for more than 30 years, and Mrs. P was consumed with mourning. Slowly her grief gave way to the anger that had been simmering as she watched her husband waste away.

“It was Dr. D’s fault,” she fumed. “After all, my husband had been going for checkups as he was instructed. Why didn’t Dr. D spot this earlier?”

It was a question she asked a plaintiff’s attorney, and his answer pleased her.

“I believe Dr. D was negligent in his treatment of your husband,” the lawyer said.

He hired a physician to serve as an expert witness, and after going over the records, that expert agreed.

The plaintiff’s attorney promptly filed suit against Dr. D alleging that the physician had negligently failed to recommend colon cancer screening for a patient who was more than 50 years old. The lawsuit also accused Dr. D of failing to recognize the symptoms of colon cancer: low back pain, right flank pain, and unexplained weight loss.

The case proceeded to the discovery phase, and Dr. D turned over his chart and notes to the plaintiff’s lawyer. Depositions began some months later, at which point Mrs. P testified that her husband was diligent about his checkups and never mentioned discussion of a colonoscopy.

“If Dr. D had told him to do something, he would have done it,” she stated.

Dr. D was deposed next, and the plaintiff’s attorney kept his questions tightly focused.

“Did you ever recommend a colonoscopy to Mr. P?” he asked the physician.

“Of course,” Dr. D replied. “That’s standard practice. The patient declined.”

“Did you record that recommendation and Mr. P’s reaction anywhere in his chart?”

“Well, no,” Dr. D conceded. “But just because I didn’t write it down doesn’t mean it didn’t happen.”

The plaintiff’s attorney kept hammering away until Dr. D was forced to admit that he didn’t specifically remember suggesting the colonoscopy in this particular case. But, he insisted, he regularly made the recommendation during checkups, so he must have done so during the several years that Mr. P came in for his regular exams.

That was not the right answer. When the depositions were completed, the two sides settled out of court, agreeing on a $1 million award shortly before the trial was to begin.

Legal background

Depositions allow lawyers to preview the evidence that will be presented at trial and to assess the strength of the other side’s case. The attorneys ask a multitude of questions in various ways, hoping that the witnesses will contradict themselves either during the deposition or later at trial.

In this case, Dr. D’s deposition highlighted the inadequacy of his notes. Faced with the possibility that a jury would sympathize with a grieving widow and the fact that there was no evidence Dr. D had recommended a colonoscopy, the physician and his insurance company decided not to risk a big jury verdict and settled the case.

Protecting yourself

Colonoscopies, mammograms, Pap smears, blood tests—there’s much to be discussed at an exam and often little time to do it. But no matter how short an appointment is, it is essential to keep a comprehensive clinical record of each visit, including your recommendations.

These notes don’t have to be lengthy. Consider drafting a standardized checklist and keeping a copy in each patient’s chart to record both that screening reminders were given and how the patient responded. Had Dr. D noted his colonoscopy recommendation at each checkup, as well as Mr. P’s noncompliance, he would have had a better chance of prevailing at trial. In fact, he might have avoided the suit altogether.