A delayed biopsy triggers a lawsuit

The patient wanted to “think about it”, but the 10-week delay results in a lawsuit:

One of Dr. F’s patients was a 44-year-old woman who was given a routine mammogram as part of her annual checkup. The results pointed to a “suspicious area in the upper outer quadrant of the left breast.” On receiving the report, Dr. F, a family physician, called the patient into the office to discuss her options. When he recommended a breast biopsy, the nervous woman replied that she wanted to think about it and would let him know when she decided. As he watched her leave the office with the issue unresolved, Dr. F wondered whether she would ever return. His abbreviated note in the patientÃ‚Â’s chart read: “Discussed with pt. will advise.”

Comments

Anonymous
So let me get this straight… the lawyers now claim that its the DOCTORS responsibility to call back every single patient that has a pending decision to make and force them to make the decision?
What a load of BS. The doc told the woman what he saw, she said she woudl think about it and get back to him. The ball is in her court now. Only a scumbag lawyer would argue that the ball is still int eh doctors court and he is responsible for forcing the patient to make a decision on what to do.
Anonymous
This is a load of steaming cow dung on a cold midwestern morning.
Unfortantely, it is too close to the PI cases in which the patient has no subjective complaints until weeks or months after an accident and the provider is still willing to relate the diagnosis of the condition (typically multi-year degenerative) to the accident. Both types of cases should be thrown out.
Anonymous
If he told the patient and documented the fact that he did so then the patient’s claim is specious. A judge should do the right thing and dismiss the case with prejudice.
The shame of it is that too few judges are willing to do the right thing. There is a huge cost to letting this kind of thing go to trial when evidence so squarely contradicts the claims.
I recently started sending letters to a few patients who appeared to me to not appreciate the timliness of a recommendation for treatment that they wanted to “think about”. I suppose you can take them at their word, as I often do, but sometimes I think what they want to do is go home and forget about what I told them. So out goes a letter, with a copy to their chart. In the end, I suppose that they could claim to have forgotten about that too, or to have never received it, or to have “misunderstood”, but it is another layer of CYA in case they come back and want to say I never told them of the consequences of not deciding at all.
It is reasonable to hold the patient responsible for the consequences of their own indecisiveness. A doctor who presents choices clearly shouldn’t feel the need to paper up a chart just to avoid a specious claim by a greedy and dishonest patient, family or her lawyer. And it shouldn’t require a whole trial to show the court the doctor warned the patient, either.
Diora
I absolutely agree with the first poster – it is the patient responsibility. One thing I’d like to point out though is that in this particular case, as the expert testimony showed, 10-week delay didn’t make any difference as the tumor was very aggressive and very likely had already spread by the time it was detected by mammogram. This is probably true for the majority of similar cases -CJD before you object, I base this on the probability that mammograms save one’s life based on studies vs that they have no effect on the natural course of the desease; it seems logical to assume that the number of not-detected-early lawsuits mirrors these numbers.
While it is very likely that this particular family would’ve sued even if they had understood that earlier treatment in this particular case wouldn’t have made a difference, in many cases the fact that you guys (doctors) oversold mammography’s ability to save lives may have influence lawsuits. If not the plaintif, it can influence the judges and juries.
Maybe if pervasive “just catch it early and you’ll be fine” message had been tempered by the facts, you’d have less lawsuits? At the very least, you’d get more sympathetic (and more educated) juries and judges.
Anonymous
I agree it is the patients responsibility to follow up on this. Goodness her doc. gave her the info she needed, how can she claim it is “his” fault for “her” dragging her feet.
But, there is always 2 sides of a story. I had a situation once where I had went to a doc. with alot of different, never before experienced symptoms. I knew my own body and was certain something was wrong. This was a specialist my pcp sent me too, I had never seen him before.
He was pretty flip and patronizing throughout this entire office visit.
Even telling me he was sure there was nothing wrong but to “ease your mind” he would to do some testing. When finished he told me…”If anything turns up you will hear from my office, if you don’t hear anything then everything is A-OK”
I didn’t hear anything and after 3 weeks I just felt something was wrong because of the way I felt and my worsening symptoms. So I called his office. Again I was initially met with arrogance by the receptionaist that answered the phone. “Well if there had been anything wrong you would have heard from us.” The message was ….I was a dumbass for bothering them with this useless phone call. I finally almost had to beg her to get the results for me.
When she left the phone it was forever before someone came back and it was the nurse informing me that my results had “some how” gotten misplaced and the doc. hadn’t seen them yet. I needed to come in the next day…..It turns out I had invasive cancer and ended up having 3 surgeries and chemo. An illness that I fought for 5 years.
You want to venture a guess as to what would have happened had I not been persistent?
Aggravated DocSurg
So let me get this straight… the lawyers now claim that its the DOCTORS responsibility to call back every single patient that has a pending decision to make and force them to make the decision?
Actually, yes. Our malpractice carrier recommends a maximum 6 week time frame for breast masses or mammorgraphic abnormalities — settle the issue within that time frame with a biopsy (or further imaging) and you likely will not get sued; otherwise, you can be sued for delay in diagnosis (despite the fact that a few weeks makes no difference in the behavior of the cancer). If the patient delays in return, we are expected to document phone calls and send two registered letters if need be in order to be seen by the courts as trying hard enough to reach the patient. This is particularly difficult with the patient who has chosen to see another provider for another opinion, but does not let you know, or who chooses “alternative” therapy, and ignores your calls and letters.
ML
I wouldn’t put the responsibility of over-selling mammography solely on the shoulders of doctors. The American Cancer Society, the general media, women’s magazines and numerous breast cancer charities share a good amount of the blame.
I also feel that the responsibility of deciding to have a biopsy is the patient’s. She was told there was an abnormality on her mammogram, and she was told that a biopsy was recommended, or at least further studies. It sounds like she couldn’t come to a decision, until she heard of a celebrity who had gone for a biopsy. Though this may sound heartless, anyone who bases her medical decisions on what celebrities do or don’t do is putting herself in a precarious position.
Over the past 15 years, I’ve had 3 breast lumps (though normal mammograms). I was referred to a surgeon each time. And I didn’t dilly/dally about going. I guess I don’t understand women who panic when they feel a lump or have an abnormal mammogram, to the point that they delay doing anything. Though I understand that for the woman in the article, it wouldn’t have made any difference in her survival.
Re the poster above who had to be persistant in getting her test results – two or three times, I’ve also had the pleasure of meeting up with the office staff fascist, who with Gestapo-like efficiency imposes herself between you, the doctor and your test results. It’s never been clear to me whether they’d behave like this no matter who they work for, or if they’ve been given instructions by their boss to behave this way.
document pt’s deferral
I think its only fair to point out that the doctor SAYS he advised the patient to get a biopsy, but the records don’t agree with him, and what he told the paitent was in dispute. Testimony by her husband of what his wife reported to him did not line up with the doctors version of events. The jury, after seeing and hearing all the evidence and in-person testimony of those involved, didn’t believe the doctor.
It wouldn’t have taken any more time to write “Patient advised to get biopsy” – and little more to write something to the effect that she wanted to think over whether she wanted the procedure, and that *she* chose to defer the test for the time being.
The dispute wasn’t over whether the office pestered her to get a test.
It was whether he ever advised her to get the test in the first place.
Anonymous
I don’t understand- if he never advised her to get a biopsy, then why did she return ten weeks later to get one? How else would she have been led to the procedure- she didn’t see any other doctors in the interim.
ML
Why did the patient return to get a biopsy? It is explained in the article linked to above:
“She (the patient) was particularly persuaded by the experience of a television celebrity who had undergone a breast biopsy and removal of a small carcinoma in situ without ill effect. Shortly after reading about this individual, the patient returned to Dr. F and announced her decision to go ahead with the breast biopsy.”
And the doctor did win the case (again from the article):
“…the defense’s (doctor’s)experts explained that earlier diagnosis of the breast cancer would not have changed the outcome. The malignancy was likely stage 4 when Dr. F met with the patient to discuss biopsy. The jurors returned with a verdict in Dr. F’s favor.”
I do think that the doctor could have done a better job of documenting his original conversation with the patient. Still, he did call her into his office to discuss the abnormal mammogram. He could not force the patient to get biopsy (no doctor can), he could only discuss the need for getting one. She delayed making a decision, then only make one when she heard of a celebrity having a biopsy.
Anonymous
Again, and maybe it is just the way the article was worded, but it says she “returned to Dr. F and announced her decision to go ahead with the breast biopsy.” Sounds to me like it was an idea that the doctor had originally discussed, not something she came up with on her own.
Documented or not, I’m not buying that a doctor could be conscientious enough to call the patient back into the office to discuss an abnormal mammo result (for which the report would’ve had to suggest biopsy or at least further imaging) only to then leave the patient with the impression that she didn’t need to do anything about it.
There’s nothing wrong with writing “d/w pt” on abnormal test results, I think it fully implies that both the nature of the result as well as the options for f/u were discussed.

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