Physician Legal Review & Commentary

Failure to order follow up on recommendations from radiologist leads to $150,000 award

By Jonathan D. Rubin, Esq.
Kaufman Borgeest & Ryan
New York, NY

Sandra L. Brown, Esq.
Kaufman Borgeest & Ryan
New York, NY

Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs
Winthrop-University Hospital
Mineola, NY

News: A 64-year-old man was seen for a CT scan in January 2004. The gastroenterologist who ordered the CT scan failed to follow through in ordering further radiology studies based on the radiologist’s recommendation for the same. Eleven months later, in December 2004, the patient was diagnosed with kidney cancer with residual effects, including thrombophilia and myocardial infarction, due to the failure to timely diagnose. A jury awarded the plaintiffs $50,000 for past pain and suffering. Pursuant to an agreement between the parties, the plaintiffs recovered the stipulated minimum of $150,000.

Background: In January 2004, the patient, a 64-year-old man, underwent a CT scan of his abdomen by the defendant gastroenterologist at the physician’s practice group. Prior to the CT scan, plaintiff suffered from gastroesophageal reflux disease. The CT results were reviewed by a radiologist who opined that further studies were necessary. Despite the radiologist’s findings, the gastroenterologist did not order additional studies.

In December 2004, 11 months after the initial CT scan, the patient learned that he was suffering from cancer of a kidney. The patient claimed that his cancer was not timely diagnosed or treated and that the delay allowed residual effects, including thrombophilia, an abnormality of the blood’s coagulation. The patient further contended that the abnormality caused a myocardial infarction.

The myocardial infarction required two surgeries to place a graft to bypass an occluded artery. The patient and his expert claim the first surgery failed as a result of the thrombophilia. The second surgery was successful. The patient further claimed the myocardial infarction and surgeries led to the development of chronic obstructive pulmonary disease, that his heart was permanently weakened by the myocardial infarctions, and that the heart’s weakness could cause additional problems in the future.

The patient sued the gastroenterologist that performed the CT scan in January 2004, the gastroenterologist’s private practice group, the radiologist that reviewed the January 2004 CT scan, and a hospital that provided treatment to his condition. The patient claimed the gastroenterologist and radiologist failed to diagnose his cancer, that the hospital’s staff failed to properly treat his condition, and that the failures of all constituted malpractice. The patient also claimed that the gastroenterologist’s private group was vicariously liable for the gastroenterologist’s actions. Prior to trial, the patient discontinued the claims against the hospital and the radiologist. The case proceeded to trial against the gastroenterologist and the physician practice group.

At trial, the patient’s counsel claimed that the gastroenterologist ignored the radiologist’s recommendations that further studies be performed and that the further tests recommended by the radiologist would have led to a prompt diagnosis of cancer. Defense counsel acknowledged that the gastroenterologist’s inaction constituted a departure from an accepted standard of care but contended the inaction did not cause the myocardial infarction. Defense counsel argued the myocardial infarction was caused by an unrelated, pre-existing insufficiency of the patient’s heart.

The patient and his wife were named plaintiffs in the lawsuit. The patient sought recovery of damages for past and future pain and suffering, and his wife sought recovery from damages for loss of consortium. Together the plaintiffs sought a total of $1.8 million. Plaintiff’s pre-trial settlement demand was $750,000, and defendant’s pre-trial settlement offer was $150,000. The parties stipulated that the plaintiff’s combined damages at trial had to equal or exceed $150,000.

Following a seven-day trial, the jury found that the gastroenterologist’s inaction caused the plaintiff’s myocardial infarction. It determined that the plaintiff’s damages totaled $50,000, all awarded for the patient’s past pain and suffering. Pursuant to the parties’ agreement, the plaintiffs recovered the stipulated minimum of $150,000.

What this means to you: This case demonstrates the maxim that you never know what a jury will do. The low amount of the verdict is surprising considering the facts as presented. In this case, it was conceded that the treatment by the gastroenterologist was negligent but their attorney took the position that such failure to meet the standards did not cause the myocardial infarction. Essentially, they asserted the “we-didn’t-do-it” defense. The jury did allow for $50,000 in pain and suffering.

The kidney cancer was related to the CT of the abdomen, but the blood dyscrasia and the heart attack might not have been related to that condition. Risk management professionals need to be attuned to failure-to-diagnose claims as general propositions. In this particular situation, it is uncertain whether the cancer would have been detected had additional tests been done, but there is certainly the possibility that it could have been. Perhaps the testimony elicited in front of the jury was such that the cancer was treatable and the delay was not meaningful.

The case was litigated on damages and proximate cause of those damages to the patient’s condition. In this case, these damages apparently were not felt to have caused significant harm. In another case or even in front of a different jury, the result might have been much different. The most disturbing thing about the case is the simplistic nature of the departure. The patient underwent testing and as is common for radiologists, the reader of the CT scan suggested additional studies. It is not unusual for a radiologist to recommend additional testing and sometimes a primary physician might think that the radiologist is being too cautious, but the primary care physician must consider many questions, including: what testing was suggested, how invasive the recommended tests were, and how expensive and uncomfortable the tests were.

The lesson here is that having ordered a CT scan, the gastroenterologist was bound to follow up on the results that included discussing the radiologist’s recommendations with the patient and deciding on an appropriate care plan. At minimum, the gastroenterologist needs to make careful notes in the medical record of his thought process and the reasons for not ordering additional testing.

This case also highlights the “danger” of advanced testing. CT scans, MRIs, and other complex modalities, aside from their clinical indications, create a medical-legal two edged sword. It has become common for physicians to order additional testing in an effort to practice defensive medicine, to ensure that nothing is overlooked, and to provide coverage for the ordering physician. Looking at it from the other side, it is clear that the advanced testing also creates a burden. According to the case report, the patient came to the physicians complaining of gastroesphogeal reflux disease (GERD). Based on medical literature, is a CT scan a common modality employed in the treatment of GERD and, if not, perhaps the GI physician had suspicions of some other more dangerous or complex condition or at least wanted to rule out a more serious malady?

If that is the case, then it would be even more important for the physician to follow up on the testing that was done and order the appropriate follow-up testing. Even if the condition was found, i.e., the kidney cancer was not in the differential diagnosis and was not what the GI doctor was looking for, the higher index of suspicion for something warranted a more complete follow through.

A different patient with a different condition using the same basic set of facts could easily have led to a verdict in excess of a million dollars.