Legal Review & Commentary

A delay of nine months leads to a spread of cancer and a $2.8 million judgment

By Jan Gorrie, Esq., and Blake J. Delaney, Summer Associate
Buchanan Ingersoll Professional Corp., Tampa, FL

News: A 70-year-old man went to the emergency department (ED) complaining of shortness of breath. Although chest X-rays showed a suspicious mass in the patient’s left lung, physicians did not notify the patient or his primary care doctor. Nine months later, when the patient returned to the hospital complaining of shortness of breath, physicians discovered the man had lung cancer. Physicians attempted to remove the mass from the man’s lung, but the cancer had spread to his brain. The patient filed suit, alleging the delay in diagnosis significantly reduced his chance of survival. A jury awarded the patient and his wife more than $2.8 million.

Background: In February 1998, a 70-year-old man experiencing shortness of breath went to his local hospital’s ED. The hospital, owned and operated by a not-for-profit foundation, offered a variety of health-related services. Additionally, the foundation was associated with a clinic association, located next door, which ranked as one of the largest multispecialty group practices in the country. Although the foundation and the clinic were separate organizations, physicians from the clinic often worked in various departments of the hospital, including the ED. The ED physician who treated the patient in this case was a clinic employee.

Upon the patient’s arrival, the ED doctor immediately ordered a chest X-ray. The next day and after the patient had been discharged to home, the hospital’s radiologist interpreted the X-ray and discovered a suspicious mass in the patient’s left lung. The radiologist made note of a "potential developing malignancy" in the lungs and relayed the report to the ED. Despite the radiologist’s request for careful follow-up, the ED physician did not notify the patient or the patient’s family doctor; the X-ray was merely forwarded to the clinic. The failure to act violated the clinic’s administrative procedures, which required either the ED physician or the clinic itself to notify the patient’s primary care doctor.

More than nine months later, in November 1998, the patient returned to the ED with complaints of vertigo and shortness of breath. Another chest X-ray was ordered and again the radiologist identified the presence of a suspicious mass in the patient’s lung. When the doctors asked the man if he had been treated for the lesion, the patient was shocked, stating that he was unaware of any abnormality. The patient was formally diagnosed with malignant lung cancer in December.

A year after the radiologist’s initial diagnosis, surgeons from the clinic operated on the patient in an effort to remove the cancer. Although the doctors thought they had successfully removed the tumor, tests performed a year later showed that the cancer had spread to the man’s brain. The patient underwent radiation and chemotherapy, but doctors classified the cancer as a Stage IV disease, which meant the man had, at most, a 20% chance of surviving five years.

In November 2000, the patient sued the clinic and the hospital, asserting claims of failure to properly evaluate his symptoms, properly diagnose and treat the cancer, refer him to a proper specialist, and inform him he had cancer. The patient’s wife also sued for loss of companionship and loss of services. In January 2001, the plaintiffs voluntarily dismissed the hospital as a party to the lawsuit, leaving the clinic as the only defendant. Though the error occurred at the hospital’s ED, those involved in the delay were employed by the clinic. The patient did not sue any physicians individually, though, because he alleged the problem lay with the clinic’s "incredibly antiquated record reporting system." Unlike many large clinics, the defendant clinic did not have a full-time employee charged only with coordinating and managing records.

The plaintiff alleged he initially had a Stage IA, nonsmall cell, lung cancer and his chance of cure and surviving five years was 80%, the best possible prognosis for lung cancer. The plaintiff claimed that the cancer metastasized to his brain as a result of the nine-month delay in diagnosis, leaving him with a 20% chance of survival. This reduction of 60%-80% meant the clinic, more probably than not, caused the man to lose his chance of survival.

The defendant clinic admitted it acted negligently by not following its standard-of-care procedures. The clinic conceded that it should have followed up on the report and that there was a nine-month delay in diagnosing the cancer. However, the defendant asserted it was speculative as to when the brain metastasis took place. The plaintiff’s cancer was slow-growing and could have metastasized prior to his original visit to the ED, or even as a result of the surgery in February 1999. The clinic maintained that, as a result of the delay in diagnosis, the cancer only progressed from Stage IA to Stage IB. A Stage IB cancerous mass would result in a 60% chance of five-year survival. Defense experts argued that this 20% loss in the patient’s chance of survival might not have impacted the man’s life expectancy at all. Indeed, it certainly was not "more probably than not" the legal cause of the man’s loss of chance of survival. The plaintiff’s counsel, however, got the defendant’s expert witness to concede that a year delay in diagnosing malignant lung cancer would lessen the effectiveness of any subsequent treatment.

As an additional defense, the clinic maintained that the patient’s other medical conditions limited the plaintiff’s life expectancy. The clinic argued that the man’s chronic obstructive pulmonary disease and heart disease hurt his chance of responding to the cancer treatment. Also, the defense attempted to introduce testimony of the plaintiff’s history of smoking cigarettes, but the judge disallowed any such evidence.

The plaintiff was alive during the trial, but he could not testify in person because of his illness. Instead, he testified by videotape. The man’s 62-year-old wife did testify at trial. The jury returned a verdict in favor of the plaintiffs in the amount of $2,842,000. The man was awarded approximately $1 million for his loss of normal life, $225,000 for pain and suffering, and $218,000 for emotional distress. The jury awarded his wife $1.2 million for loss of companionship and $71,000 for loss of services.

What this means to you: "The failure of caregivers to actively obtain and follow through on the results of ordered diagnostic studies is tragically avoidable and sadly, far too common. In this case, the ball was dropped on a number of levels, and attempts at defending this case may have exacerbated an already bad situation," states Candy Hodgson, LHRM, insurance and risk coordinator, University of South Florida in Tampa, FL.

The importance of communication among the providers, particularly among caregivers presumed to be associated by virtue of their working in a health care system of hospitals, clinics, and surgery centers.

"One of the first questions that comes to mind with this scenario relates to the initial viewing of the chest X-ray and the subsequent communication between the providers. It isn’t clear from the case synopsis whether or not the chest X-ray was seen by the ED physician, or anyone else for that matter, prior to the patient’s discharge from the emergency department. Although a radiologist did not see the film until the following day, it seems highly unlikely that the ED physician would not have at least looked at the film. Regardless of whether or not the ED physician would have had the expertise to identify the suspicious mass, it would be interesting to know whether he ever saw the X-ray," notes Hodgson.

"Presuming that the ED doc did not see the X-ray, it is the usual practice following emergency department visits to advise the patient to follow up with his/her primary physician. Again, the case synopsis is silent as to this matter, but it seems unlikely that this would not have occurred. Carrying our presumption a bit further, if the patient did, indeed, see his primary care physician at anytime during the nine months between ER [emergency room] visits, it would seem to me to be incumbent upon the primary care physician to attempt to find out what had transpired during the ER visit. Some kind of written report would have been generated by the radiologist and placed in the patient’s ER record. The primary care physician, if aware of the ER visit, could have requested a copy of the record of that visit and seen the radiologist’s interpretation, potentially preventing the degree of delay, which ultimately occurred," adds Hodgson.

Further, given the common ownership and common employer of the practitioners, one might assume that obtaining and transferring records could have easily been accomplished.

The failure of the ED physician and/or clinic employees to notify the patient or his primary care physician of the X-ray result was, by admission, a deviation from the clinic’s administrative procedures.

"Administrative procedures are only words on paper if there is no oversight or accountability for their adherence. The further revelation that this was a recognized problem and the fact that, unlike other similar practices, the clinic did not have a dedicated records coordinator effectively rendered this claim indefensible," says Hodgson.

"Once the claim had been presented, it seems to me that this was a case which should never have gotten beyond the stage of a negotiated settlement. Attempting to base the defense of a preventable delay in diagnosis and treatment on the patient’s underlying medical condition and chances of survival, absent the error, is folly," states Hodgson.

The word "cancer" connotes fear, and "juries are only confused by expert testimony debating the type and level of cancer, and the tossing about of survival percentage rates which, at best, are nothing but cold, arbitrary statistics. Although we in risk management like to talk about the four elements of negligence, which are duty, breach, damage, and causation, the reality of the situation is that juries don’t go to law school. What a jury will hear and understand about this case is that there was a preventable error, the ball was dropped on more than one occasion, this violated the clinic’s own policies, and the defense is now trying to persuade them that it didn’t matter anyway because of the patient’s underlying medical condition. Putting this case before a jury was probably not the most effective way to control the damages in this situation," notes Hodgson.

In order to move forward, the clinic and foundation should discern why the ED physician failed to notify anyone of the of the X-ray result.

"Inquiries such as, was it an isolated oversight because of a frantic work load, a pattern of behavior, distraction due to personal problem, an ill-advised delegation of responsibility, should be made. And whatever the underlining reason(s), the risk manager needs to peel back the onion’ and discern the cause of the breakdown at this level, and take corrective measures as appropriate," says Hodgson.

Further, while the clinic had an administrative procedure on point to the situation presented, why didn’t it work? 

"Back to the onion for the risk manager, to determine why the employee failed to adhere to the policy or whether there were systemic roadblocks preventing the successful adherence to the policy. The risk manager will need to identify the mechanism of failure — be it in system design or personnel issues — and undertake to fix the breakdown," notes Hodgson.

"Lastly, the decision to defend this claim, presumably that of the clinic’s insurance company, was, in my opinion, an unfortunate one. I suspect that resolution of this matter outside of a courtroom, as well as undertaking to fix the problems, like the hiring of a full-time record coordinator, could have been accomplished for far less than the nearly $3 million it ultimately cost," she concludes.


• Champaign County (IL) Circuit Court, Case No. 00L-303.