Mr. C, a 60-year-old nonsmoker, went to the hospital to have bladder stones removed. It was a simple enough procedure. His urologist, Dr. D, had ordered all the pre-op tests, including the chest x-ray mandated by the state for anyone older than 50 who would be undergoing anesthesia.
The surgery proceeded without a hitch, and Dr. D assured his patient that the stones would no longer be a problem. Mr. C went home relieved, but his relief was short-lived.
The chest x-ray had revealed a small lesion on Mr. C’s lung that was consistent with cancer. Although the film was filed in his chart, he was never told about the worrisome image.
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The radiologist saw the lesion on the x-ray and made a notation that the patient should be informed. During her surgical prep, the anesthesiologist read the notation but didn’t mention it because “it wasn’t her business.”
Dr. D never bothered to check the x-ray at all. In his mind, it was a state requirement, not something he was interested in or would have ordered on his own. He believed his function was to remove the bladder stones, and that’s what he did.
Four months after the surgery, Mr. C began coughing up blood. Alarmed, he went to his general practitioner who sent him for a chest x-ray that revealed a fist-sized tumor. He was immediately referred to an oncologist who performed a biopsy and gave Mr. C the bad news: He was suffering from an aggressive cancer that was inoperable because the tumor was so large. Chemotherapy was his only option.
“I don’t understand,” Mr. C told the oncologist. “I had a chest x-ray at this hospital four months ago, and it was fine.”
The physician nodded sympathetically. “Sometimes tumors grow so fast that they can be undetectable even a few months before.”
Mr. C’s daughter, coincidentally a physician in the same hospital, decided to take a look at the original x-ray. To her shock, she found the radiologist’s notation of the lesion and realized that no one had mentioned it to her father. At the time, the cancer had been just a small spot.
Mr. C and his family were furious. They believed that had he known about the lesion sooner, treatments options would have been available that might have saved or at least prolonged his life. As it turned out, despite several rounds of chemotherapy, Mr. C died just eight weeks after his cancer diagnosis. One of his final requests was that his wife and daughter sue the urologist for not telling him about the original chest x-ray. They followed his instruction and hired a plaintiffs’ attorney soon after Mr. C’s death.
Dr. D’s insurance company provided him with a lawyer, who recommended they try to settle out of court. They offered $25,000, which the family rejected.
“Don’t worry,” said the defense attorney. “They have to prove four things in order to win: a duty on your part; a breach of that duty; causation—meaning that the breach caused the injury; and damages.
“They will likely be able to prove that you had a duty to tell the patient about his x-ray and you breached that duty, but I don’t think they’ll be able to show that he died because of that. The cancer was too aggressive. We’ll get an oncologist to testify that even if the patient had been diagnosed four months earlier, the outcome would have been the same.”
At trial, Mr. C’s family introduced evidence showing that Dr. D had ordered the x-ray, that the film—with the spot noted—had been placed in the patient’s chart, and that Dr. D never bothered to inform the patient about the findings. They brought in an expert oncologist to testify that had the cancer been caught earlier, more treatment options would have been viable, buying Mr. C months or even years of life.
The defense lawyer introduced his own expert oncologist, who pointed to the speed at which the untreated tumor had grown and the inability of chemotherapy to slow its progress. This, he explained, showed that an earlier diagnosis would not have helped Mr. C—the cancer was just too aggressive.
“Some cancers are like this,” the defense oncologist testified. “They are so destructive that there really is no feasible treatment, no matter when they are detected. It may actually have been a blessing for Mr. C to have those four months thinking that he was healthy.”
Then Dr. D took the stand. He testified that it wasn’t his responsibility to look at the x-ray. “I’m not really the one who orders it, although my signature is on the form. The state mandates that the x-ray be taken for the hospital, but it’s not my business. I just handle the urologic part.”
The jury deliberated for several hours and then found Dr. D. not liable.
Legal background
This case demonstrates the unpredictable nature of juries. While Dr. D’s culpabiliy may have seemed clear to Mr. C’s family, the jury did not want to hold him accountable.
There are two likely reasons for this: (1) the jury believed that Mr. C’s cancer was so aggressive that early detection wouldn’t have changed the outcome, and (2) the jury did not understand whose responsibility it was to convey the news about the x-ray.
The plaintiff’s attorney may have made a tactical error by failing to sue the anesthesiologist and radiologist as well as Dr. D. Both of them knew of the results of the x-ray. If they had been made part of the case, the jury would have had the opportunity to evaluate the roles of all three physicians in preventing Mr. C from getting more timely cancer treatment.
To protect themselves, the radiologist and anesthesiologist probably would have pointed an accusatory finger at Dr. D as the one who was ultimately responsible for transmitting the x-ray results. The anesthesiologist might have been held liable for her silence, too, since she noticed the spot but never mentioned it. (The radiologist at least noted the spot on the chart and assumed that the surgeon would look at the patient’s records before commencing the operation.)
Protecting yourself
After the verdict in this case, the state in which the suit was brought changed its laws. Radiologists are now required to make a phone call to the ordering physician and report any unusual results, rather than just make a note in the patient’s chart. And, of course, clinicians are expected to look at those charts when a patient arrives for treatment.
Even specialists must view a patient as a whole person, not just an amalgam of organs and tissue. If tests reveal a potential problem outside your area of expertise, you have a moral obligation, if not an explicit legal duty, as a clinician to make that patient aware of it.
