A chest x-ray considered unnecessary on initial exam might have spotted disease that showed up later.

Mr. D was a nurse practitioner at a family practice clinic in Georgia. After he treated one of its long-time patients for recurrent respiratory problems, she sued for malpractice, trying to recover the high cost of treatment for a serious illness she claimed should have been caught much earlier.

The patient was a 28-year-old woman with a lengthy history of sinusitis and upper respiratory tract infections. She complained of difficulty breathing while on vacation. Mr. D saw her as an “old patient” with an established condition. During his physical exam, he detected mild residual bronchospasm. Because the woman had a family history of asthma, he suspected asthma had caused the breathing difficulties.

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As he had been trained to do, Mr. D performed simple respiratory function tests. Forced expiratory volume in one second (FEV1) tests, with and without a bronchodilator, showed considerable response to the bronchodilator. He prescribed a beclomethasone inhaler, with an albuterol inhaler to be used in case of a recurrence, and had his supervising physician review the case. With the physician’s approval, Mr. D discharged the patient with instructions to return the next month.

A year later, the woman was diagnosed with Hodgkin’s disease in the mediastinum, when an obvious tumor was found on a chest x-ray. The tumor also involved the lower margin of the thyroid gland.

After several courses of conventional chemotherapy failed, she underwent a partial thyroidectomy, high-dose chemotherapy, and a bone marrow transplant from a relative. When she received the outsized hospital bill for all this, she realized she might have to sell her house to pay it.

Not long after a friend suggested the patient sue her doctor, Mr. D and his supervising physician received notice of a lawsuit against them for “failing to take a chest x-ray in the face of obvious respiratory distress,” which “would have revealed the presence of Hodgkin’s disease and allowed early treatment, [resulting in] total cure.”

The case moved through the document discovery stage to depositions. The patient, who gave her deposition first, appeared remarkably well, considering her ordeal. She reported that the various treatments had resulted in remission. Even at the time of trial, she appeared healthy and active—not the dying patient that the plaintiff’s lawyer would have preferred.

Mr. D’s deposition was scheduled next. After several cancellations, he found himself submitting to eight hours of questioning under oath. The plaintiff’s lawyer started by asking about basic information relating to his education and licensure, then moved on to his experience. By the time they got to the case at hand, four hours had passed.

The plaintiff’s lawyer’s tone shifted from friendly to probing, as he started asking about the patient’s condition during her clinical visits. Fortunately, Mr. D had recorded the visits in enough detail that he was able to reconstruct them fairly accurately, as he worked through the clinical encounters and his findings on each occasion.

Asked why he hadn’t ordered a chest x-ray when it was clearly appropriate, Mr. D answered, “According to the clinical findings I made, a chest x-ray was not indicated.” The plaintiff’s lawyer snorted in reply.

Mr. D spent the next hour discussing indications for chest x-rays when a patient presents with difficulty breathing and came away from the deposition stressed and sweating. The defense lawyer tried to encourage him, but Mr. D felt his presentation would not be good enough at trial to win the case.

Six months later, the trial opened. The patient testified that Mr. D had not discussed the possibility of Hodgkin’s disease as a cause of her symptoms and had not offered to order a chest x-ray. The plaintiff’s lawyer stared hard at the jury and nodded slowly, as if to point up the significance of this issue.

When Mr. D took the witness stand, the defense lawyer had him go over the clinical situation and retrace his reasoning, especially the use of FEV1 testing with and without broncho-dilator, and the indications for chest x-ray in such a patient.

Expert witnesses for both sides then testified on videotape, directly contradicting each other and recommending opposing standards of care. The jurors seemed confused, but after the lawyers summed up their cases, they retired to consider all that they had seen and heard.

When all was said and done, the jury returned with a verdict for Mr. D. Later, one of the jurors came up to him and said, “We thought you were a very careful doctor(!), and the way you explained it all made sense to us. We felt sorry that you were put up there like that.” Mr. D returned to the clinic feeling vindicated.

Legal background

In theory, the plaintiff’s lawyer must prove that the patient was damaged by the provider’s substandard care. This can be difficult when the patient develops a serious condition like Hodgkin’s disease that the lawyer can hardly blame on the provider.

To counter this difficulty, plaintiff’s lawyers have introduced a new theory of damages: “loss of chance of cure.” It is based on the idea that if the clinician had provided proper care, the disease would have been detected early and totally cured. This dubious speculation needs expert witnesses to back it up, but there has been no shortage of them willing to testify, even under the most dubious circumstances.

In this case, the plaintiff’s expert testified that the patient’s enlarged lymph nodes would have been detectable on chest x-ray when she complained to Mr. D about her respiratory problems. The disease would have been easily curable at that point, in contrast to one year later, when the cancer was considerably advanced and required drastic treatment.

Lessons learned

The best form of risk management is to show a jury that you are a careful, competent, and compassionate health-care provider. To do this, you need adequate medical notes that will allow you to reconstruct each clinical visit sufficiently well to demonstrate that you exercised those qualities. Rather than the exhaustive documentation some experts encourage, this is a practical goal.

In most areas of medicine, expert panels have developed “practice guidelines” based on medical evidence in the literature. These guidelines, which are periodically updated, both help and hinder risk management in that they are becoming an informal standard of care.

On the one hand, if followed, guidelines supply a “safe harbor” of practice that provides a ready defense in case of an adverse outcome. On the other, if the guidelines are not followed, providers will have to be prepared to explain why they deviated in the particular case. Overall, however, practice guidelines benefit the clinician, and of course the patient, when they are applied appropriately.