Mr. N, a physician assistant, and Dr. Q practiced together in a small-town family clinic for 25 years and shared a close professional relationship. Living and working in a small town meant that the clinicians often treated families of patients that spanned generations. Such was the case with Mrs. G, aged 65 years. Her father had been a patient of Dr. Q’s until his death from cancer. Mrs. G’s two grown sons and her grandchildren were also patients in Dr. Q’s practice. Mrs. G had spent many years living in another state, but when she moved back to her hometown she returned to Dr. Q.

For the past 10 years, Mrs. G had come in for annual check-ups as well as treatment and monitoring of anemia, which she had developed later in life. She regularly saw both clinicians.

Dr. Q had a minimalist philosophy and did not believe in what he considered “unnecessary” tests. Over the past 25 years, he’d inculcated Mr. N in his method of practice—”fix what ails your patients, and don’t cause extra problems.” Other clinicians might send patients out for bone density scans, mammograms, colonoscopies, MRIs, echocardiograms and the like, but not Dr. Q—not unless he deemed it really necessary.

“Do you know how many false positives come up with things like mammograms?” he asked Mr. N. “Why put someone through that if you don’t need to?” The problem was that Mr. N had a hard time understanding what Dr. Q thought was necessary. Certainly, an apparent broken bone required an x-ray. And if a patient had symptoms indicating the need for a diagnostic test—CT scan or endoscopy—the patient would be referred. But in the absence of symptoms, neither Dr. Q nor Mr. N was very proactive in ordering or even suggesting tests for patients, even when warranted by practice guidelines.

So, despite Mrs. G’s age and family history of cancer, neither Dr. Q nor Mr. N advised her to get age-appropriate tests, including a colonoscopy or a sigmoidoscopy. It wasn’t their usual habit to ask about or advise on such matters during exams.

One midsummer day, Mrs. G came in complaining of fatigue, weakness, and abdominal pain. Dr. Q diagnosed a viral infection and told her to come back if she didn’t feel better. Several weeks later, she returned, this time seeing Mr. N with similar complaints. After checking her vitals, Mr. N also diagnosed her as having a bug.

Two weeks later, Mrs. G went to the emergency department of a local hospital with chest pain and shortness of breath. A chest x-ray revealed a large left lung mass, and a CT scan showed multiple liver masses. The following day, Mrs. G underwent a liver biopsy, which revealed metastatic cancer suggestive of primary colon cancer. A colonoscopy, performed one week later, revealed a large tumor. The attending physicians felt that the cancer had begun in Mrs. G’s colon and spread to her lungs and liver. Exploratory surgery revealed that much of her abdomen had been replaced by cancerous tumors. Her pelvis had a tumor, her liver was riddled with tumors, and 23 out of 24 lymph nodes tested positive for cancer. Mrs. G had no treatment options because of the extent of the spread. All that could be done was to give her continuous pain medication. She died two weeks later.

Mrs. G’s family was stunned. She had seemed fine at the beginning of the summer, yet was gone before the end of it. The family’s shock was soon replaced by anger. Why, they wondered, hadn’t Dr. Q or Mr. N recommended that Mrs. G have a colonoscopy? Wasn’t that standard practice? One son called Dr. Q and confronted him directly.

The family’s attorney subpoenaed Mrs. G’s medical records. In 10 years’ worth of documentation, there was no mention that either practitioner had prescribed a colonoscopy or sigmoidoscopy for Mrs. G. “I believe we have a case,” said the attorney.

Dr. Q and Mr. N were sued for medical malpractice.

When notified of the malpractice suit filed against the clinicians, Mr. N asked, “Should we try to settle?”

“I suggest we go through the deposition stage and see how things look at that point,” advised his attorney.

During depositions, both Mr. N and Dr. Q were asked whether they had ever suggested that Mrs. G have a colonoscopy or sigmoidoscopy. They both replied, “No.” They were asked whether they were aware that there was a history of cancer in Mrs. G’s family, to which they answered, “Yes.” When asked whether they’d done any screening for cancer or ever referred or recommended that Mrs. G get such screening, both clinicians admitted that they had not.

After several grueling days of depositions, the defense attorney pulled Dr. Q and Mr. N aside and said, “It’s time to talk about settlement offers. Your testimony won’t play well in front of a jury.” Negotiations ensued, and, just prior to the trial’s start date, the case was settled for the practitioners’ liability limit of $1 million.

Legal issue

Depositions are part of the discovery process. The purpose of depositions is to give both sides a preview of what will come up at trial. This is especially important with complex cases. In addition, depositions provide each side with the opportunity to impugn a witness’s testimony at trial if he or she says something at odds with what was said during depositions, which are also conducted under oath.

Protecting yourself

Whether a test is unnecessary or not is subject to a great deal of debate these days. Some clinicians regularly practice defensive medicine and order every possible test for their patients to protect themselves from potential lawsuits. Unfortunately, this puts a tremendous toll on the health-care system and is not necessarily the best solution for patients.

The biggest failing in this case was that neither Dr. Q nor Mr. N even suggested a colonoscopy to Mrs. G. At her age and with a history of cancer in the family, it was a failure on the part of the clinicians not to recommend that as part of regular health care. Whether Mrs. G followed up would not have been in the control of the clinicians, but the referral certainly would have been.

As part of a regular checkup, always recommend any standard age- and health-history-specific tests that are warranted, such as colonoscopy, mammography, and prostate-specific antigen tests. Notes should always be made in the patient’s file that such recommendations were made. If the patient does not follow through, you can rest easy knowing you have done your part by informing the patient about the value and necessity of the tests. n

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.