Ms. J is an experienced physician assistant working in a suburban family practice clinic. One of her patients was a young man whose chronic allergies concealed a much more serious condition, ultimately involving her in a lawsuit.

The patient was a 27-year-old electrician who came to the clinic complaining of deafness in his left ear. Allergies were common in the suburb where the clinic was located, and at the time, Ms. J had several patients with nasal congestion, inner-ear fluid, and obstructed eustachian tubes. She thought the electrician fit the pattern and prescribed a trial of antihistamines and steroid nasal spray.

Over the following six months, the patient was diagnosed with intermittent otitis media and sinusitis, both of which appeared to respond to antibiotics. But he continued to complain of deafness on the left side, even after the allergy season ended. Ms. J referred him to her supervising family physician (FP). He confirmed her clinical impression and told her to continue with her medical management.

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Two years later, the man’s deafness seemed to worsen. Ms. J obtained her supervising physician’s assent to refer him for ENT testing. After examining the patient, the ENT specialist asked him to come back for an audiogram and other testing, but he did not do so. He continued to be managed by the FP and Ms. J.

The patient’s reason for not returning became a matter of dispute in the trial that followed. The plaintiff’s lawyer accused the FP of failing to refer the patient back to the ENT for the testing, while the defense lawyer argued that the original referral was sufficient to meet the standard of care and that a second referral for the testing itself was not necessary.

Ms. J and her supervising physician continued to treat the man’s “recurrent sinusitis.” His headache and deafness grew so bad that he eventually requested a referral to a second ENT.

That ENT confirmed the diagnosis of chronic sinusitis with a CT scan and performed surgery to “clean out” the sinuses. The surgery did not relieve the main symptoms. When the man started to complain of double vision, the second ENT referred him to an ophthalmologist, who corrected his glasses for refraction.

A month after the sinus surgery, the patient was watching a medical show on TV and noted a case similar to his own, in which a brain tumor was diagnosed by MRI. The next day, he went to Ms. J and demanded referral to a third ENT.Once there, he insisted on an MRI, which clearly showed a large left-sided neuroma with pressure effects on the temporal bone. After three operations, the patient was left with a residual tumor at the base of the skull and mild neurologic deficits affecting his balance, speech, and facial expression.

The man consulted a plaintiff’s lawyer, who called for the chart and had it reviewed by another ENT specialist. Upon receiving a report that was favorable to his client, the lawyer filed suit against Ms. J, the FP, and the two ENT specialists who treated the patient for sinusitis.During depositions, the patient gave a poignant account of the gradually progressing symptoms that were repeatedly misdiagnosed until he himself insisted on an MRI scan. He told the lawyers that he had not worked for three years because of the headaches and weakness caused by the undiagnosed tumor.

Ms. J and the FP were deposed next. They said they had performed to their standard of care by referring the patient to an ENT specialist when his symptoms worsened. They related the patient’s failure to return to the first ENT physician for testing, blaming some of the delay in diagnosis on the patient himself. Then the expert witnesses for each side gave their testimony, hotly disputing causation. The plaintiff’s expert said that if the tumor had been diagnosed at first presentation, it could have been completely removed and the patient would have been symptom-free.

The defense expert stated that considering the size of the tumor at diagnosis and its typical pattern of slow growth, it was probably already quite large when the patient first presented to Ms. J, and very little (if anything) would have changed about the clinical course. At trial, the patient took the stand first. His story of insisting on the MRI after seeing a TV show rang true to the jurors and evoked strong sympathy. He estimated his lost wages at $250,000, but his pain and suffering were worth many times that amount, according to his lawyer.

The plaintiff’s lawyer also pointed the jury to an entry in the ENT’s chart: “Patient called and canceled, FP thinks he can handle case on his own.” He argued that this showed the FP had “cut short” specialist involvement, which might have led to a diagnosis much earlier.

The defense team argued that the tumor was so large and had such a low growth rate, the patient would have encountered the same problems even if the diagnosis had been made when he first went to the family clinic six years before.

The jury didn’t believe the defense story and awarded the patient $2.3 million in damages, reduced by 20% for his comparative negligence in not returning for testing as requested by the first ENT specialist. The insurance company for Ms. J and the FP paid their policy limits.

Legal theory

Most states now have comparative negligence statutes, which reduce the amount of an award according to the percentage of patient negligence found by the jury from the evidence. In this case, the jury attributed 20% negligence to the patient, probably on the basis that the recommended testing might have revealed the tumor. In most states, if a jury attributes more than 50% of the fault to the patient, the claim fails.

Lessons learned

Patient noncompliance remains a central problem for risk management. Although most juries pay little attention to noncompliance, a growing number of plaintiff’s lawyers argue that “if only the patient had realized the possible consequences of noncompliance,” he would have followed orders. According to this theory, it was the provider’s fault that the patient didn’t follow instructions. An alternative argument is that even though the patient was nonadherent, it was the provider’s responsibility to follow up and ensure that tests were performed or that the patient returned for follow-up visits.

Most practices handle this problem by making an effort to follow up on ordered tests and consultations through a chart- or computer-based reminder system. This at least makes the provider aware that an ordered test or consultation has not been completed. An important test result or consultation missing from the chart might warrant a phone call to the patient, with a follow-up note in the chart.