Defense Verdict Upheld Against Claims of Failure to Diagnose
By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
California Hospital Medical Center
News: A 64-year-old woman with a history of lymphoma experienced a persistent fever. The patient sought treatment from her primary care physician, who referred her to an oncologist, rheumatologist, and infectious disease specialist. The patient consulted with the former two but did not consult with the infectious disease specialist. The oncologist could not diagnose or rule out a malignancy, and again referred the patient to an infectious disease specialist and pulmonologist. The patient was eventually hospitalized, and testing revealed an infection that developed into endocarditis, leading to a stroke.
The patient sued multiple physicians, including the oncologist, alleging the oncologist failed to perform or order diagnostic blood tests to diagnose the infection. The oncologist successfully defended, noting that his duty was to evaluate cancer, not infection. The oncologist’s dismissal was upheld on appeal.
Background: In May 2011, a woman sought treatment from her primary care physician for a fever. The physician prescribed several courses of oral antibiotics, but those were ineffective. The same physician then ordered a CT scan and additional testing. The patient had a history of lymphoma, and the imaging showed suspicious masses in her lung and abdomen. Given the patient’s history and the results of the imaging, the physician referred the patient to an oncologist for possible recurrence of lymphoma. The primary care physician additionally referred the patient to specialists in rheumatology and infectious disease.
In June and July 2011, the patient consulted with a rheumatologist but never followed up with the infectious disease specialist. The rheumatologist ruled out any rheumatological disorder. According to the primary care physician, with rheumatological disorders ruled out, the next cause to rule out was cancer, then infectious disease.
In July 2011, the patient consulted an oncologist who ordered a series of additional imaging tests and biopsies. The patient visited the oncologist three times and sent a report to the patient’s primary care physician after each visit. Even with multiple visits, imaging, and biopsies, the oncologist was unable to diagnose or rule out a malignancy. The oncologist referred the patient to a pulmonologist and infectious disease specialist, but the patient did not consult with the infectious disease specialist.
The patient was hospitalized in December 2011. Blood cultures showed a bacterial infection that developed into endocarditis, affecting the patient’s heart. The patient subsequently had a stroke related to the endocarditis.
In September 2012, the patient initiated litigation against the primary care physician, the oncologist, the oncologist’s practice group, the rheumatologist, and others. The patient alleged the oncologist deviated from the applicable standard of care by failing to perform or order a blood culture and other diagnostic blood tests. The defendant oncologist and practice group denied liability and filed a motion for summary judgment, claiming the oncologist’s role was to rule out lymphoma or other cancer, not evaluate the patient for infection.
The trial court agreed with the defendant physician and practice group. Based on deposition testimony, medical records, and expert testimony, the oncologist and practice group were responsible for evaluating the patient for a possible malignancy. According to the defendants’ expert, the oncologist did not depart from the standard of care in failing to diagnose endocarditis. The trial court granted the defendants’ motion, which the patient appealed. The appellate court affirmed the trial court’s decision, noting the defendants demonstrated that the oncologist’s role was limited to evaluating whether there was a recurrence of lymphoma or any other cancer and that his duty of care as an oncologist did not extend to the alleged departures in failing to diagnose endocarditis.
What this means to you: This case holds both substantive and procedural lessons for care providers. As a substantive matter, the defendant care provider — an oncologist — rightfully challenged the malpractice litigation based on his duties, which fell within his medical specialty. While care providers owe a legal duty to their patients, those duties extend only to the services within the scope of those medical functions undertaken by the care provider and relied upon by the patient. Different jurisdictions phrase the precise “duty” imposed slightly differently, but in general, the care provider must use his or her skill, prudence, and diligence as other members of the profession commonly possess and exercise. A deviation from that duty that causes injury to the patient constitutes malpractice.
Fortunately, care providers are not expected or required to be omniscient. Here, the defendant oncologist was tasked with evaluating the patient for recurrence of lymphoma, or any other cancer. The defendant oncologist performed that function appropriately, even though the oncologist could not diagnose or rule out a malignancy. More importantly, the oncologist referred the patient to other specialists, including a pulmonologist and infectious disease specialist, in a similar manner to the patient’s primary care physician’s referrals. It was not incumbent upon the oncologist to perform the task of other specialists, such as the infectious disease specialist, and the court agreed that the oncologist did not assume a duty of care to diagnose and treat an infectious disease.
This case can provide clinicians with an example and peace of mind knowing that appropriately abiding by the duties within their designated scope of practice is a method for defending against claims of malpractice. However, it is clear that the patient did not understand the importance of following through with the instructions from her primary care physician. Many patients do not comprehend the compartmentalization of medical practice. It is not dissimilar to an automobile assembly line where one worker performs one task at each station. For the assembly line to work, each step must be completed. By not following through with the instructions provided by all physicians involved, the patient missed a critical step that more than likely would have prevented harm. To reinforce the defendant’s case, documentation emphasizing the physician’s explanations of the importance of the referrals to infectious disease in the patient’s health record would be prudent. Instructions provided at the patient’s level of understanding might have mitigated any adverse effects.
Procedurally, this case reveals a powerful mechanism for providers to challenge and potentially defeat malpractice claims without the need for a jury or trial. When there is no dispute about the material facts, a motion for summary judgment allows a court to evaluate the case by applying those undisputed facts to the law. Juries function as finders of fact, resolving disputes when there are debates about what happened or when there are issues of credibility. But in the absence of factual disputes, courts on their own can resolve litigation, which allows defendant care providers to save time and money and achieve a defense verdict earlier than otherwise would be possible.
In this case, there was no dispute about the oncologist’s provision of services, nor would there be any need to evaluate witness credibility. The parties all agreed that the oncologist evaluated the patient for a malignancy, and although malignancy could not be diagnosed or ruled out, the oncologist properly performed his function. Similarly, the parties acknowledged that the oncologist did not perform or order a blood culture and other diagnostic blood tests. As a result, the defendant care providers used these undisputed circumstances to present and successfully litigate the issue to the court: Did the oncologist have a duty to order blood tests and diagnose the patient’s endocarditis?
- Decided Nov. 15, 2023, in the Supreme Court of the State of New York, Appellate Division, Case Number D73306.
This case can provide clinicians with an example and peace of mind knowing that appropriately abiding by the duties within their designated scope of practice is a method for defending against claims of malpractice.
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