A gynecologist’s vague recommendation forces a PA to defend her interpretation before a jury.

Ms. K, 48, was an experienced physician assistant in the family practice division of a large HMO. Her caseload was primarily composed of established patients who needed routine checkups. One of them, a woman with a history of cervical cancer, involved her in a malpractice suit.

Divorced with no children, the 38-year-old patient had transferred to Ms. K’s care when her employer changed HMOs. Her surgical history included a radical hysterectomy at age 28, during which one of her ovaries had been preserved to prevent premature menopause.

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The woman had had no indication of cancer recurrence but came to the HMO for regular checkups. At her first meeting with Ms. K, the patient complained of abdominal pain and some vaginal bleeding. Ms. K’s first thought was that the cancer had recurred, but the woman said she was not particularly worried. Granulation tissue at the vaginal vault occasionally caused blood to seep from her vagina, she explained.

Ms. K had not been trained in gynecologic examination, so she consulted her supervising physician, who came straight to the point: “Send her to Dr. L [the HMO gynecologist],” he said.

Two weeks later, Ms. K received the gynecologist’s report noting the patient’s history, describing the area of granulation at the vault of the vagina, and stating that if further investigation was warranted, the patient should be sent to an oncologist. Since the granulation had been noted for some years, Ms. K was satisfied that no further action was necessary and filed the report. This decision was questioned again and again in the subsequent lawsuit.

Six months after her visit, the patient developed a vesicovaginal fistula and consequent urinary incontinence. Cystoscopy and biopsy showed the fistula to be made of malignant cells. The woman was treated with chemotherapy and local radiation. Secondary tumors were found in the pelvic lymph nodes and the liver. After four years of painful illness, the woman died.

Shortly thereafter, her sister, who was executrix of the estate, hired a lawyer to assist with probate. When this lawyer learned of the circumstances of the patient’s death, he quickly referred the sister to a friend, a plaintiff’s lawyer, who sued Ms. K and her supervising physician. The probate lawyer eventually received a “referral fee” of 10% for his trouble.

The lawsuit charged “wrongful death,” and Ms. K was more than a little nervous during her pre-trial deposition. Under questioning, she worked her way through the medical chart and her notes, reconstructing each visit and explaining the reasons for her management decisions. After about four hours, the plaintiff’s lawyer got to the crucial point, when Ms. K received the gynecologist’s report recommending an oncology consultation “if warranted.”

Ms. K explained that she had considered all factors, including the intermittent bleeding from the granulating area at the vault of the vagina, before she decided to file the report without arranging an oncologic consult or discussing it with the patient. The plaintiff’s lawyer questioned her about this visit for around an hour, and as the answers came, he grew more and more confident that he had a strong case.

Experts for each side were deposed next. The plaintiff’s expert gynecologist testified that Ms. K’s lack of referral had “caused the patient’s unnecessary death.” The defense’s expert oncologist swore that the six-month delay had had no effect on her advanced cancer. When the depositions were completed, the lawyers tried to settle the case out of court. Negotiations fell through because the two sides were so far apart: The plaintiff’s lawyer asked for $2 million, while the insurance company and defense lawyer valued the case at less than $100,000. They arrived at the low figure largely because the patient was dead and because of Ms. K’s credible performance at her deposition. The case proceeded to trial.

Under the defense lawyer’s questioning, Ms. K repeated her deposition testimony and explained her management rationale for the jury. The plaintiff’s lawyer’s cross-examination again focused on the gynecologist’s report. He emphasized how easy it would have been for Ms. K to send the patient to an oncologist, implying that such a referral would have led to a complete cancer cure.

The plaintiff’s expert, appearing via videotape, backed up the lawyer on this point. But the defense’s expert disagreed, leaving the jurors, as usual, with diametrically opposed expert opinions. After considering all that they had seen and heard, they came back with a verdict for the plaintiff of $226,000. In the state where this trial took place, the interest a financial award would have earned between the time of the incident and the rendering of the verdict is added to a jury’s findings. Here, the judge ruled that $125,000 would have accrued since Ms. K filed the gynecologist’s report, bringing the total award to $351,000. Ms. K was deeply affected by the case and retired to stay home with her children.

Legal theory

The settlement value of a malpractice case is affected by the facts, the quality of the witnesses, the state where the case is tried, and whether the patient is alive. Patients who are deceased do not incur ongoing medical bills and other expenses that settlements are designed to cover. As a result, awards in these cases are much lower than in cases involving a patient who is alive and must be compensated for mounting costs.

In this case, the death of a childless divorced woman was worth less in terms of settlement value than the permanent disability of a married mother, whose family presumably would share her pain and suffering. These factors—combined with Ms. K’s performance on the witness stand, which mitigated the charges to a large degree—produced a verdict far below the $2 million the plaintiff’s lawyer sought.

Protecting yourself

Constructing a medical-risk profile for each patient and an individual education/prevention program tailored to the circumstances is an effective risk-management strategy. In this case, the patient might have benefited from a routine vaginal examination and biopsy of the granulating area because cervical cancer, like breast cancer, is notorious for recurrence.

Her follow-up program should probably have involved annual visits to the oncologist, as well as to her family-care provider.

Poor communication continues to cause adverse medical events and subsequent lawsuits. Sometimes, a consulting specialist makes an ambiguous or conditional recommendation that becomes a source of potential liability. In this case, Ms. K might have sought clarification from her supervising physician or from the gynecologist before deciding not to follow up on the vaguely worded recommendation for an oncology referral.