When a clinician identifies with a patient’s condition, objectivity may be lostand mistakes become likely.

Dr. F, 58, was planning to retire in a few years and go to work for an international medical charity. Because she had never been sued, she believed she was at low risk for facing a malpractice claim at this point in her career. But an established patient who presented with an enlarged lymph node proved her wrong.

The 49-year-old woman was an assembly-line worker in the airplane industry. She came to the office a week after noticing swelling in the right anterior triangle of her neck. Dr. F examined the mass and confirmed that it was a firm, swollen lymph node. She also examined the woman’s mouth and the back of her throat, which seemed slightly inflamed.

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Dr. F recommended a trial of antibiotics, explaining that most lymph-node swellings were a reaction to infection that generally subside after several weeks. The doctor mentioned that she herself had had an enlarged cervical lymph node a few years before. She’d had it checked by an ENT specialist, and everything had been just fine. In fact, Dr. F confided, she still had the swollen node under her sternomastoid.

“Let’s just wait and see for a week or two,” she told the patient. “We can save you a visit to the specialist. This is all going to come to nothing, trust me.” Those words would come back to haunt her.

The patient left the office reassured, but when she returned for follow-up a month later, the mass had enlarged about 50%. She then insisted on being referred to an ENT specialist and set up an appointment before the week was out.

The specialist found a squamous cell carcinoma of the tongue, hidden in the back of the mouth, with metastases to the cervical lymph nodes. He referred the woman to a head-and-neck surgeon, who performed a radical neck dissection. This was followed with chemotherapy and radiation to the primary tumor site. The treatment was successful, and the woman’s cancer went into remission. But the surgery was disfiguring, and she did not return to her job.

Instead, she consulted a plaintiff’s lawyer, who had a family practice expert review the chart. The expert found fault with Dr. F’s case management, stating that clinicians must consider malignancy in the differential diagnosis of a painless neck nodule. Failure to do so led to delayed treatment, the expert concluded, which caused more radical surgery than should have been necessary.

The plaintiff’s lawyer paid the expert a $5,000 opinion fee and used the report as the basis for a lawsuit against Dr. F. Depositions started about a year later. The patient went first, with a heart-rending account of the problems, both medical and personal, that her cancer had caused. She contended that Dr. F had missed the significance of the swollen lymph node and would not have acted at all if she hadn’t insisted on an ENT referral herself. The woman blamed Dr. F for delayed treatment and claimed that her condition had left her unable to return to work.

Next, the plaintiff’s lawyer deposed Dr. F. He started slowly but intensified his attack as his questioning built to its climax: “You’re an incompetent doctor, and you almost killed my client. Didn’t you?” he yelled.

Dr. F was almost in tears by the end of this verbal assault and had trouble sleeping for the next week. The plaintiff’s lawyer’s aggressiveness renewed her feelings of guilt and intensified her self-doubt. She asked her lawyer to settle the case.

But the defense lawyer and the insurance adjuster believed they had a good case, especially after the surgeon, testifying as the subsequent treating clinician, said the delay probably made no difference to either the treatment plan or the prognosis. Consequently, they offered a settlement of $50,000, but the plaintiff’s lawyer turned them down. “I won’t settle for less than $1 million,” he scoffed.

By the time the case went to trial, the patient had been free of cancer for six years. Still, the jury could easily see her surgical scars. The woman recounted her suffering and inability to return to her job, again asserting that Dr. F would never have referred her to a specialist had she not insisted.

Dr. F repeated her contention that her professional and personal experience led her to believe that the enlarged lymph node was most likely caused by reactive hyperplasia, not cancer. Consequently, she thought a “wait-and-see” policy was appropriate.

After listening to the patient, Dr. F, the surgeon, the experts, and the lawyers, the jury came back with a verdict for Dr. F.

Legal background

“Subsequent treating clinicians” have a special place in the pantheon of expert witnesses. Because they treat patients before the litigation starts, they are seen as independent figures in a malpractice case, and juries hold their testimony in high regard. As a result, all of the lawyers in a case — especially the plaintiff’s attorney—want to elicit testimony from these doctors that favors their side.

In this case, the subsequent treating clinician was the head-and-neck surgeon, who testified that the patient’s outcome would not have been different with an earlier diagnosis. This struck at the heart of the plaintiff’s argument that the delay caused her suffering. Apparently, the jury believed the surgeon and gave his testimony more weight than the opinions put forward by the paid experts on both sides.

Protecting yourself

Retaining objectivity can be difficult, even for professionals; we are all influenced by our experiences. But Dr. F went too far when she equated her own experience with benign enlarged nodes to the patient’s situation. Good risk management includes the ability to look at each case with detachment.

This case also illustrates the risk-management problem posed by a returning patient. From a business manager’s point of view, these patients might be seen as “clogging up the system,” or in today’s opaque practice-management jargon, as “suboptimal revenue generators.” Return visits are often reimbursed at lower rates than an initial consultation.

Seen from a risk-management point of view, however, each returning patient is another chance to get it right. Thus, it makes sense to establish a set of procedures to make the most of that opportunity during follow-up visits.

For example, you can have each returning patient see another clinician, as well as the original practitioner. Or, you can take particular care to examine the case deliberately and systematically yourself. Some clinicians find it useful to assume, for the sake of argument, that the original diagnosis was wrong and go from there. Whatever the actual algorithm used, it is useful to have one specifically for returning patients.

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.