Dr. D was a primary-care clinician with her own practice. One thing that Dr. D had learned over the course of more than three decades in practice was that patients differed greatly in what they wanted from a health-care provider.
One of Dr. D’s more unusual patients was Mr. T, age 67 years. At their first appointment, Mr. T told her that he was not looking for a primary-care provider and that he only wanted her to check his BP.
“I know my BP is borderline high, and I want to have it monitored by you. I will come see you twice a year. I will pay out of pocket. But I am not looking for anything more than having my BP checked.”
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At first, Dr. D tried to reason with the patient. “If you don’t have a primary-care provider, you should,” she explained. “And don’t you want to have a complete physical?”
“No,” insisted Mr. T. “I don’t want a physical or anything else. Just take my BP, please.”
Dr. D was somewhat puzzled, but she started a patient file for Mr. T. In the file, she noted his BP readings every six months. Mr. T stayed under Dr. D’s treatment for more than five years.
One day, Mr. T failed to show up for his regular appointment, and Dr. D had her office manager give him a call.
“He is in the hospital,” reported the office manager, after speaking with Mr. T’s wife. “He had had some very bad stomach pain and no bowel movement for several days. So he went to the emergency department.”
“I’ll see how he’s feeling,” replied Dr. D. Mr. T was not doing well. An abdominal pelvic ultrasound and a pelvic CT scan showed free intraperitoneal air, indicating a perforated bowel. Mr. T was taken for emergency surgery. During the surgery, it was discovered that
he had colon cancer. The pathology report revealed invasive adenocarcinoma that had metastasized to the lymph nodes. Mr. T was told that he had stage 3 colon cancer.
Within the next few months, the cancer spread to Mr. T’s lungs, and his condition deteriorated. He died fewer than six months after his diagnosis. After Mr. T’s death, his widow contacted an attorney to explore her options.
“My husband was going to Dr. D’s office every six months for five years before he was diagnosed with cancer,” she told the attorney. “I don’t think that doctor ever once suggested that my husband get a colonoscopy or anything. Maybe if she had, he would still be alive.”
“If it is true that he was seeing this clinician for five years and she never suggested any screenings, then perhaps we do have a case,” replied the attorney. “I will get copies of his medical records from Dr. D.”
Once the attorney obtained the medical records, he hired an expert physician to review them and then give his opinion.
“These are some of the strangest medical records I have ever seen,” the expert remarked. “It’s hard to believe, but it appears that the clinician did nothing other than check Mr. T’s BP for five years.”
“What should the doctor have been doing?” asked the attorney.
“A general physical, blood work, and certainly some sort of colorectal cancer screening — either a digital rectal exam, a fecal occult blood test, or a sigmoidoscopy or colonoscopy. For a patient of that age, these things should be standard.”
The attorney called Mr. T’s widow and told her that he would take the case. He filed a malpractice lawsuit against Dr. D.
Dr. D’s heart sank when she received the papers notifying her about the lawsuit. She immediately realized that the medical records looked odd with just BP readings. Plus, she had never made notes anywhere — including in the patient’s file — about the special arrangement that she and Mr. T had in which he had declined any other services.
Dr. D met with the defense attorney provided by her malpractice insurance provider.The attorney recommended that they begin the discovery and deposition process but consider a settlement if it looked like the case would go to trial.
Dr. D’s attorney warned her that during the depositions she would be questioned by the plaintiff’s attorney and that it was very important that she be honest and consistent since anything she said in the deposition could be used in the trial. As expected, the plaintiff’s counsel questioned Dr. D regarding whether the standard of care had been met by not providing or suggesting any colorectal cancer screenings.
Dr. D was forced to admit that the standard of care for a primary-care physician does require such screenings, but she immediately informed Mrs. T’s attorney that she wasn’t Mr. T’s primary-care physician, and that he’d only hired her to do BP screenings.
The attorney looked skeptical, and asked whether Dr. D had written that in the patient file or anywhere in the notes from the past five years. Dr. D had no choice but to respond that she had not. On the advice of her own lawyer, Dr. D settled the case for a sum of $1.5 million.
Legal background
Depositions provide both parties in a lawsuit with the opportunity to question witnesses in preparation for trial. They are conducted as part of the discovery process in civil cases. During depositions, witness testimony is transcribed. The transcript then can be used at trial to contradict what the witness says at that time. No judge is present at depositions; the attorneys handle the entire process.
Protecting yourself
At one point or another, most clinicians will likely be confronted with a patient who does not want to follow advice or declines full examinations. While you cannot force an individual to undergo a blood test, Pap smear, or colorectal-cancer screening, the standard of practice requires the clinician to offer these services and inform patients about the benefits and risks. If a patient opts to decline services, be sure to record it in his or her record so that there is evidence of vital care being offered and refused.
Dr. D had an unusual relationship with her patient, who simply wanted hypertension screenings and nothing else. The patient made it clear what he did, and did not want right from the beginning, which was his right. However, Dr. D’s error was in not detailing this arrangement anywhere in the patient record or in her notes.
Once Mr. T passed away, there was no one left to confirm the arrangement, and Dr. D appeared to be negligent. A note in the patient’s chart could have changed the outcome of this case.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.
