The jury ruled malpractice, but then it provided a surprise to the plaintiff and clinician-defendant.

Over the course of his 25 years as a primary-care physician, Dr. G has noted an increase in the recognition of gastroesophageal reflux disease (GERD) as a cause of chest pain. He wondered how many cases of GERD had been treated as CAD before accurate diagnostic testing could differentiate the two. Dr. G was brought into court by a patient who represented a variant of this diagnostic problem.

The patient was a 42-year-old electrician who presented with complaints of substernal chest pain that occurred mainly at night when he was lying down and improved with antacids. Dr. G immediately suspected GERD. He ordered an ECG to check for CAD and scheduled gastroenterologic diagnostic testing to verify the presence of reflux. By the time the investigations had confirmed his diagnosis, Dr. G had already initiated therapy, and the patient’s condition was significantly improved.

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Five months later, the patient returned to the clinic with pain in his left shoulder. Dr. G discovered a left supraclavicular mass, which, on biopsy, turned out to be filled with metastatic undifferentiated carcinoma of the lung (oat-cell carcinoma). Although the histology suggested a pulmonary origin, the first CT scan of the chest failed to show a primary tumor and merely identified enlarged lymph nodes throughout the thoracic cavity. A later CT scan demonstrated a left upper-lobe lung mass that was enlarging despite chemotherapy. The patient died three months later.

The man’s family asked a plaintiff’s lawyer to investigate the circumstances of the diagnosis and treatment provided by Dr. G. The lawyer called for the man’s chart and had it reviewed by his in-house registered nurse as well as an expert pulmonologist. The pulmonologist was critical of Dr. G’s management, stating that he should have ordered a CT scan at the first complaint of chest pain. A CT scan, the expert continued, would have led to the diagnosis and successful treatment of an early cancer. When Dr. G heard this criticism, he said, “This expert apparently doesn’t have much experience with anaplastic carcinoma of the lung.” Nevertheless, the plaintiff’s lawyer sued Dr. G, alleging substandard care and medical negligence.

The patient’s wife testified at deposition that the family income had dropped from $120,000 (the patient was an electrician who owned his own business) to zero on her husband’s death. She reported that he had been worried that his pain “might be cancer” before Dr. G reassured him that his symptoms were due to GERD. Dr. G testified that his diagnosis of GERD had been confirmed with studies.

Performing a CT was not part of his workup for symptoms of reflux. A plaintiff’s expert countered that it was a breach of the standard of care not to order a CT scan after a patient reports chest pain. An expert for the defense pointed out that the patient’s first CT scan (done shortly after the diagnosis of secondary lung cancer based on the lymph-node biopsy) did not show a primary tumor in the lung. Therefore, he argued, a CT scan taken five months earlier was unlikely to have revealed the lesion.

Following the depositions, the parties discussed settlement. The plaintiff’s lawyer opened with an offer of $2 million. The defense’s $150,000 counteroffer was summarily declined, and the case went to trial.

The trial testimony followed the depositions closely. Only Dr. G and the patient’s wife testified in person (the experts appeared via videotape). After the patient’s wife had given her account, Dr. G took the stand and used the medical chart to reconstruct each visit from his summary notes. He pointed out that he was more thorough and exhaustive in his workup than the average clinician and took steps to rule out CAD and confirm reflux when starting treatment. Further, he added, the patient had responded quickly to the medication he had started. This would not have been expected if the man’s symptoms were due to carcinoma of the lung.

Dr. G described the subsequent appearance of a supracla-vicular secondary tumor as “coincidental” and denied that the original presentation was related to the later discovery of lung cancer. As expected, testimony by the two experts was in direct contradiction. The plaintiff’s expert oncologist testified that a CT scan, if properly performed, would have detected the primary lung tumor and allowed for early treatment. The defense expert replied that the primary lung tumor was not detectable until some time after diagnosis had been made through a lymph-node biopsy, so a CT scan at first presentation might not have shown the primary tumor.

The trial went on for two weeks. In the end, the jury deliberated for six hours before finding that Dr. G had been negligent but had not caused the patient harm. There was no monetary award.

Legal background

Because of delays and the unpredictable progression of a jury trial, most experts now testify either by having their depositions read in court by a third party (typically a legal assistant or junior attorney) or by having their depositions videotaped and replayed for the jury. The demand for and market value of qualified experts have risen as legislatures and courts place more restrictions on the qualifications of those allowed to testify with regard to medical and other technical areas.

Lawyers often believe that a quick jury decision favors the defendant, while lengthy deliberations imply that the jurors are working through the details of calculating damages. Although widely held, this theory has not been studied scientifically, and there is considerable doubt as to its accuracy. Despite the uncertainties, the fact remains that the longer a jury deliberates, the more confident the plaintiff’s lawyer feels, thereby placing more pressure on the defense to attempt a last-minute settlement.

The jury in this case ruled in favor of the plaintiff on the issue of negligence and for Dr. G on the issue of causation of damages (jurors do not typically differentiate between the two issues).

Depending on the jurisdiction in which the case is brought, it may be worth conceding liability and defending the case on damages. This can be a viable strategy as long as the jurors are sharp enough to appreciate the difference. Dr. G’s case was tried in a prosperous county where education levels could be expected to be higher than average.

Risk-management principles

Dr. G’s systematic approach to the workup of a patient with suspected GERD impressed the jurors. However, financial and insurance constraints do not allow every practice the luxury of such a thorough approach to a patient presenting with chest pain. An effective risk-management strategy would include a trial of medications for the suspected diagnosis and a short note in the patient’s chart indicating that further investigation is warranted but the patient cannot afford to follow through.