Physician Legal Review & Commentary

Failure to screen for cancer results in $5.4 million jury verdict

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

Betsy D. Baydala, Esq.
Kaufman, Borgeest & Ryan LLP
New York, NY

Barbara K. Reding, RN, LHCRM, PLNC
Clinical Risk Manager
Central Florida Health Alliance
Leesburg, FL

News: A 65-year-old man was diagnosed with Stage IV colorectal cancer after exhibiting warning signs, including rectal bleeding, irregular bowel movements, and lethargy, while under the care of his internist for 16 years. Despite being at a higher risk for colorectal cancer after the age of 50, the internist never referred the man to a gastroenterologist or for a colonoscopy. The man died at the age of 69 after undergoing four years of aggressive chemotherapy treatment. In the wrongful death action that followed, a jury awarded the decedent’s family $5.4 million after finding the internist negligent in failing to screen the decedent for colorectal cancer.

Background: For 16 years, a Washington, DC, adult male was under the medical care of his family care physician. According to the man’s family, he presented to his physician with complaints of rectal bleeding, irregular bowel movements, and lethargy, which his family claimed were signs and symptoms of colorectal cancer. At no point during this time did the physician refer the man for a colonoscopy or to a gastroenterologist for further evaluation. In 2008, at the age of 65, the man was diagnosed with Stage IV colorectal cancer. The man underwent four years of aggressive chemotherapy treatment and died at the age of 69. He was survived by his wife and two adult children.

In July 2010, the decedent’s estate commenced a wrongful death action against the family care physician alleging that he was negligent and violated the standards of medical care by failing to order colorectal screenings after he was 50 years old, failing to refer the decedent to a gastroenterologist, failing to perform appropriate and complete physical examinations, and failing to timely diagnose colorectal cancer. The decedent’s estate argued that the physician’s failure to perform proper screenings resulted in a delay in diagnosis and treatment of colorectal cancer, which led to metastasis and death.

The physician denied liability and argued that he complied with the applicable standard of medical care at all times and that the decedent’s death was the result of the progression of colorectal cancer. In addition, the physician argued that it was the decedent’s failure to schedule a colonoscopy that contributed to his death.

At trial, the decedent’s estate argued that during the 16 years before the decedent was diagnosed with colorectal cancer, the defendant-physician only performed limited testing/screening for colorectal cancer, despite the fact that the decedent was at a higher risk for developing cancer after he turned 50 years old. In addition, the estate argued that the physician failed to order a colonoscopy on several occasions, despite the decedent’s complaints of rectal bleeding and other warning signs. In response, the defense argued that the decedent bore some of the responsibility to schedule a colonoscopy. However, the decedent’s estate countered that the decedent had relied on the defendant-physician’s claim that he already was screening him for cancer.

After one day of jury deliberations, the jury found the defendant-physician liable for the decedent’s death due to his departure from acceptable standards of medical care in failing to screen the decedent for colorectal cancer. The jury awarded $5.4 million to the decedent’s estate, of which $4 million was awarded for pain and suffering based on the evidence presented regarding the decedent’s painful experience undergoing four years of aggressive chemotherapy.

What this means to you: The prevailing standard of medical care in a case such as this, in which a patient presents to his long-term internal medicine physician with concerns of a change in bowel pattern, rectal bleeding, and lethargy, warrants diagnostic screening and a referral to a gastroenterologist by the patient’s primary care physician for further consideration and evaluation. Common signs and symptoms of colon cancer include a change in bowel habits or a change in the consistency of stool, rectal bleeding and/or the presence of blood in the stool, persistent abdominal discomfort (e.g., cramps, gas, or pain), unexplained weight loss, weakness or fatigue, or the sensation that the bowel has not fully emptied.

Colon cancer guidelines generally recommend colon cancer screenings beginning at age 50. Such screenings might include, but are not limited to, a physical exam and history, blood tests, fecal occult blood tests, digital rectal exam, a sigmoidoscopy, a colonoscopy, a biopsy, barium enema, or computerized tomography (CT) imaging. Thus it is apparent that a physician has a variety of methods available to “rule out” the presence of colon cancer or other disease processes that cause symptoms such as those experienced by the decedent in this case. Exactly why the decedent’s physician opted not to recommend, order, or perform any of the screening methods to rule out colon cancer is unclear. Unfortunately, the physician’s failure to act in a manner consistent with the prevailing standard of medical care led to a delay in diagnosis and treatment of colon cancer for the patient, which resulted in the progression of colon cancer and, ultimately, his death.

In the early stages of colon cancer, many patients experience no symptoms and do not complain of any warning signs to their physicians. Therefore, regular screenings for colon cancer aid in the detection of pre-cancerous conditions or early stages of the disease. Certain known risk factors for colon cancer, such as age, personal or family history of polyps or inflammatory intestinal conditions, a sedentary lifestyle, low fiber-high fat diet, diabetes, obesity, smoking, or heavy use of alcohol, must be discussed and reviewed with the physician and patient. As soon as symptoms appear, it is imperative that healthcare providers listen to the patient concerns and act accordingly. The earlier the diagnosis of colon cancer is made, the greater the opportunity for successful intervention and treatment. The best outcome for the patient must serve as a guide in determining the plan of care.

The patient in this case was not diagnosed with colon cancer until he had progressed to a stage IV status. A stage IV finding indicates the spread of cancer to distant sites, such as other organs. Based on the patient’s expressed symptoms, a wise and prudent physician would have utilized some of the screening or diagnostic methods discussed above to care for his patient. Had the physician “ruled out” colon cancer, he would have seized the opportunity for early detection and treatment or a process of elimination as to causal factors. After a diagnosis is made, beginning any oncology intervention at a stage IV disease level drastically reduces the chance for a good or hopeful patient outcome.

The defendant-physician’s arguments advanced at trial evidently were not supported by appropriate medical record documentation or physician action. At trial, the decedent’s estate’s arguments prevailed. The jury’s large verdict in favor of the decedent’s estate, which was based in large part due to the decedent’s pain and suffering related to the delay in diagnosis and subsequent aggressive chemotherapy treatment, placed the decedent’s outcome, responsibility, and liability solely on the defendant physician, the decedent’s internal medicine practitioner.

In today’s healthcare environment, reimbursement issues and payment eligibility requirements often have led practitioners to reduce or eliminate screening tests that may be considered unnecessary or not justified by payment for services sources such as Medicare or other insurance providers. When omission of reasonable diagnostic testing for the sake of healthcare dollars leads to a negligent outcome, the punitive costs far outweigh the unreimbursed or unapproved costs of testing.

Moreover, today’s medical environment consists of a team of experts in various medical disciplines. Gone are the days when “general practitioners” delivered babies; surgically removed tonsils, adenoids, and the appendix; and cared for patients who suffered strokes or developed heart disease or gastrointestinal problems. Indeed, today there are obstetricians, otolaryngologists, specialized surgeons, cardiologists, gastroenterologists, and oncologists, just to name a few. Accordingly, it is now the standard of medical care to consult with and refer patients to experts who specialize in the evaluation and treatment of specific conditions.

In this case, a wise and prudent physician, in lieu of or following diagnostic screening for colon cancer, would have chosen to refer this patient to an expert — a gastroenterologist — for additional follow-up. At the end of the trial, the jury provided the physician with a “wake-up call.” Unfortunately, however, the call came too late for the patient and his loved ones.


Superior Court of the District of Columbia, Case No.: 2010-CA-005095-M