Family members awarded $16.7 million after radiologist missed evidence of lung cancer
By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
News: The patient, a 47-year-old woman, sought treatment at an ED in October 2006. She was complaining of a persistent cough. Her physician, a radiologist, ordered a chest X-ray in order to rule out pneumonia. When the physician read the X-ray, he determined that it was normal, and he diagnosed the patient with an upper respiratory infection. Barely a year later, the patient returned to the same hospital after her symptoms worsened. A different physician ordered a CT scan, which revealed signs of advanced stages of lung cancer. Within seven months, the cancer spread to other parts of the patient’s body, which ultimately led to the patient’s death in August 2008. The patient’s only daughter brought suit on her mother’s behalf against the initial physician and hospital. She alleged that the physician’s failure to recognize a cancerous nodule in the initial X-ray was negligent. The defendants denied any wrongdoing. The jury found the physician and hospital jointly and severally liable, and it awarded the patient $16.7 million in damages.
Background: In this case, the patient was a 47-year-old woman, a single mother with one daughter. The patient visited an emergency department at a hospital in October 2006, and she was complaining of a persistent cough. The physician in charge of treating her was a radiologist who ordered a chest X-ray in order to rule out pneumonia. After the physician examined the X-ray, he did rule out pneumonia, and he read the X-ray as normal. The physician diagnosed the patient with an upper respiratory tract infection, gave her prescriptions for antibiotics, and discharged her from the hospital.
Thirteen months later, the patient returned to the same hospital after the same symptoms worsened. At this second visit, a different physician ordered a CT scan, which revealed signs of advanced stages of lung cancer. At this point the patient finally was diagnosed with having lung cancer. The patient’s health declined quickly. Within seven months of the new diagnosis, the cancer had spread to her liver, spine, kidney, and pubic bone, and the patient ultimately succumbed to the advanced cancer in August 2008.
The patient’s surviving daughter brought suit against the radiologist and the hospital. She claimed that the physician failed to identify a nodule in the initial chest X-ray, and she said that this mistake constituted negligence. The plaintiff presented the 2006 X-ray as evidence, and medical experts during trial clearly identified a 1.5 cm nodule in the upper right lung of the patient. By 2007, this nodule grew to about 2.5 or 3 cm, and the later X-rays revealed several additional nodules that were not present in the first X-ray.
The defendants argued that the radiologist was able to see opaque areas in the chest X-ray, but these could have been caused by other things including tissue structures or other organs. Additionally, the radiologist argued that a chest X-ray is not the best tool for revealing lung cancer.
More importantly, the radiologist attempted to pass some of the blame to the patient herself by stating that he was not provided with the patient’s full medical history. The patient was a smoker of 30 years, and her mother died of lung cancer, so the radiologist argued that without this vital information, his diagnosis could not have been completed correctly. Another attempted defense focused on causation. The defendants alleged that the patient’s cancer was incurable at the time the radiologist became involved. The jury agreed with the plaintiff, found the radiologist and hospital liable, and awarded $16.7 million in damages.
What this means to you: Misdiagnosis is a surprisingly common occurrence, and it is the leading source of successful medical malpractice claims. Radiology misreads (such as in this case) are classic and problematic. There is often subjectivity involved that can make litigation defense difficult.
It is unusual for a radiologist to be the first-line practitioner in an emergency department. A radiologist is usually called in to consult if radiological studies are ordered. It is highly unlikely that a radiologist would consult with another radiologist on a chest X-ray. The issue is safety, which stems from the specialist acting as the primary physician. Had an internist or family medicine or emergency department physician ordered the X-ray, there probably would have been a second read by a radiologist. Another consideration is that radiologists, not trained in emergency medicine, might not be as inquisitive about the patient’s smoking history. It is a routine question asked in every emergency department. Make sure your emergency department staff members (nurses and physicians) obtain complete histories on all patients. They need to consider patients in denial who might exclude critical pieces of information out of fear. Finally, every patient receives discharge instructions which emphasize that they see their primary care physician in 2-3 days or come back to the emergency department if their symptoms don’t improve or get worse. This discharge conversation not only needs to be said to patients, but it needs to be documented in the medical records.
More generally, an analysis of 25 years of data from the National Practitioner Data Bank revealed that diagnostic errors were the most common type (28.6%) and resulted in the highest proportion of payments (35.2%) in medical malpractice suits. Studies claim that delayed, missed, and incorrect diagnosis might affect 10-20% of cases, with potentially devastating results, as evidenced here. The radiologist in this case misdiagnosed the patient as having an upper respiratory tract infection that was far from the correct diagnosis of lung cancer. The plaintiff and her attorneys argued that this diagnostic error constituted medical malpractice and cost the patient her life. A 2009 report funded by the federal Agency for Healthcare Research and Quality (AHRQ) found that 28% of 583 physician-reported diagnostic errors were life-threatening or resulted in death or permanent disability, while only 31% were minor or insignificant.
Physicians should use as much relevant information as possible when diagnosing a patient in order to fulfill their duty to their patients. A patient’s family and medical histories play a vital role in this diagnostic step, as this information can be a sign to the physician that this particular patient might have a unique background that makes the patient more susceptible to certain conditions. For example, knowing that a patient has been smoking for 30 years and her mother died of lung cancer would be likely to make the physician more cautious when examining a patient complaining of a persistent cough. A physician examining this patient could conduct a more thorough examination of the patient’s lungs, or perhaps perform additional diagnostic tests, in order to determine if the patient has lung cancer.
This liability can blur between the physician and hospital, as hospital staff members might be responsible for asking patients for their full family and medical histories. However, it is the physician’s duty to provide the appropriate standard of care to the patient, and a physician might be found negligent if a reasonable physician in the same position would inquire about the patient’s history, despite any prior inquiry by staff. Asking patients these kinds of questions is simple and straightforward, with potentially huge consequences if left unanswered. Therefore, physicians and hospitals should ensure that they and their staff members are following through with these procedures.
Redundancies, such as having hospital staff members and physicians ask about a patient’s history, might adversely impact efficiency in a hospital setting where there are a large number of patients and employees, but redundancy can be a valuable tool for protecting against medical malpractice cases.
Having two sets of individuals perform the same task can reduce the likelihood that the task is overlooked, so if the task is critically important and has a potentially huge impact on the patient’s care, then this redundancy might be worth the additional cost and sacrificed efficiency. This principle could have aided the case here beyond the patient’s history as well. If a second physician had viewed the 2006 chest X-ray, that physician might have spotted the nodule which the first radiologist missed. Such a redundancy could have protected both the initial physician and the hospital, as the misdiagnosis could have been corrected shortly after it was made.
- Suffolk County Superior Court, MA. Case No. SUCV2010-00558.June 18, 2014.