Legal Review & Commentary
Failure to timely diagnose endometrial cancer results in death: $1.1M PA verdict
By Jon T. Gatto, Esq. Leilani Kicklighter, RN, ARM, MBA, CHSP,
Buchanan, Ingersoll & Rooney, PC CPHRM, LHRM
Tampa, FL The Kicklighter Group
Tamarac, FL
News: A woman presented at her gynecologist's office with complaints of post-menopausal bleeding. The gynecologist ordered a pelvic ultrasound, which displayed abnormal findings. A radiologist diagnosed the woman with endometrial cancer, but the gynecologist did not tell the woman. The gynecologist instead told the woman that she was worried about abnormal tissue and cancer, performed an office biopsy, and referred the woman to a specialist. The specialist performed a hysteroscopy and dilation and curettage, and concluded that the woman did not have cancer. The next year, the woman experienced post-coital bleeding and returned to the gynecologist, who told her that she had vaginal dryness. Ten months later, while on vacation, the woman experienced heavy bleeding and went to a gynecologist, who found worrisome tissue and told her to go to her gynecologist. The woman returned to the specialist, who performed an immediate hysterectomy. The woman was diagnosed with Stage II endometrial cancer, which spread to her lymph nodes. After two rounds of chemotherapy and radiation, the woman died. Her husband and son brought suit alleging medical malpractice. A jury returned a verdict of $1,137,444.
Background: A 65-year-old retired woman presented at her gynecologist with complaints of post-menopausal bleeding. The gynecologist ordered a pelvic ultrasound, which was read by a radiologist. The radiologist reported abnormal findings and a diagnosis of endometrial cancer. The gynecologist did not inform the woman of the findings; rather she told the woman that she was concerned about abnormal tissue and cancer. The gynecologist performed a biopsy in the office and referred the woman to a gynecologic oncology specialist.
The gynecologic oncology specialist performed a hysteroscopy and dilation and curettage. The specialist concluded that the hysteroscopy and dilation and curettage were negative for signs of cancer. The specialist informed the woman that she did not have cancer.
The following year, the woman began experiencing post-coital bleeding and returned to the gynecologist. The gynecologist informed the woman that she had vaginal dryness and recommended the use of topical estrogen and that the woman return to the office if the symptoms persisted.
Ten months later, while on vacation, after a period of heavy bleeding, the woman went to a different gynecologist. This gynecologist found worrisome tissue and directed the woman to return to her regular gynecologist.
The woman returned to the specialist. The specialist ordered an immediate hysterectomy. One month later, the woman was diagnosed with Stage II endometrial cancer that had spread to her lymph nodes. Over the next eight months, the woman underwent two rounds of chemotherapy and radiation therapy. The treatment could not control the cancer, and the woman died.
The woman's husband and son brought suit on behalf of her estate against her gynecologist, the specialist, and their hospital employers, alleging medical malpractice. Plaintiffs' counsel alleged that the physicians failed to meet the standard of care in their treatment of the woman, by neglecting to tell her the results of the radiologist's pelvic ultrasound. By informing her of the results of the ultrasound, plaintiffs' counsel alleged that she would have been able to treat the cancer with a hysterectomy. Further, an oncology expert testified that had she had a hysterectomy following her first visit to her gynecologist, she would have had a 90% chance of surviving the endometrial cancer that ultimately resulted in her death.
Plaintiffs' counsel further contended that the amount of tissue obtained in both the office biopsy and dilation and curettage procedure was insufficient to reliably rule out cancer. They also alleged that the pathology report did not include an analysis of all of the tissue that was obtained in the dilation and curettage procedure. They further stated that the patient was never informed of this information and that the failure to inform her was a violation of the hospital's patient bill of rights.
Defendants' counsel alleged that the physicians met the standard of care in treating the woman, as the examinations of the office biopsy, hysteroscopy, and dilation and curettage procedure did not show any signs of cancer. Further, they contended that because they told her they were concerned about abnormal tissue and cancer, they were not obligated to inform her of the radiologist's ultrasound determination. They also argued that the cancer that the woman suffered from was a Type II aggressive cancer, which she developed after her initial visit.
Plaintiffs' counsel sought damages for the woman's pain and suffering during the final four months of her life, as she was treating her constant pain with morphine while experiencing nausea, vomiting, loss of appetite, and loss of weight. The woman's husband further sought damages for loss of society, as he was deprived of spending his retirement years with his wife. Plaintiffs also sought damages for loss of tutelage for the woman's five children. Defense counsel did not dispute the damages claimed by the plaintiff. The jury rendered a verdict of $1,137,444 for the plaintiffs.
What this means to you: This case raises many more questions than answers. Here we have a 65-year-old woman with a family who may have had her life expectancy shortened needlessly due to a lack of communication of test results. Had she been provided this omitted information, she may have made a different decision on how to proceed, which may have resulted in a more timely diagnosis and different outcome.
The sad aspect of a missed diagnosis of cancer is that often, when it is finally diagnosed, it has spread to the point where the treatment is much more drastic, and often the prognosis is not good and the patient's life expectancy is shortened.
One of the principles emphasized in today's health care climate of patient safety is partnering with patients. The ethics of medicine play a major role in the provision of health care services, as well. In some states, withholding material medical information from a patient that might impair a patient's ability to make a decision about his or her health care may be considered fraudulent concealment, which can toll the statute of limitations that runs on any claim the patient may have against the provider.
In this situation, the results of the first screening exam, the pelvic ultrasound, were positive. Yet the results were not shared with the patient. Even if the gynecologist questioned the radiologist's conclusion, the findings, along with the explanation - along with plans for further testing - should have been shared with the patient. Apparently, the results of the office biopsy were not shared with the patient, although the gynecologist did refer the patient to a gynecology oncologist. Even though further diagnostic testing turned out negative, the patient still should have been informed of the first ultrasound diagnosis. Had she had this information, she might have elected to seek a second opinion to verify the diagnosis of no abnormal cells against the ultrasound results.
The gynecologist had another chance to revisit the ultrasound results when the patient presented with post-coital bleeding a year later. He could have ordered another ultrasound to assess the current status of her endometrium compared to the previous exam results. Had this been done, it is possible that an appropriate diagnosis would have been made before it reached the Stage II level.
One would question why, 10 months later, when the patient returned to her initial gynecologist with another episode, he recommended an immediate hysterectomy. What were the results of the biopsy done in the office 10 months before? One might question why ultrasounds of the uterus were not done at intervals between the initial exam and the 10-month return visit.
Testimony at trial indicated that the tissue sent for pathology review was inadequate for a diagnosis or a ruling out of cancer. Such information would have been a part of the report sent back from the pathologist. Had the gynecologist seen this report, it would have initiated a call to the patient to redo the dilation and curettage or order another diagnostic exam. The gynecologist also should have advised the patient that no definitive diagnosis of cancer had been made and that further follow was necessary. The failure of the gynecologist to follow up was not within the accepted standard of care. As a result, the patient was unable to seek proper, early treatment that may have prevented her death, or at least allowed for timely treatment to prolong her life.
This is a case that appears to be set entirely in the physician office setting. Many physicians do not employ risk management principles in their offices and do not utilize the services of a risk manager to assist them in this area. For instance, in this case, had a process been in place to monitor the receipt of reports of all specimens and orders for tests and consultations, the fact that the tissue sent from the dilation and curettage was insufficient might have been picked up. Verification of review of all test results and consultation reports by physician initial and date is a fail-safe procedure to identify abnormal results and to show that the doctor actually saw the report/results. Furnishing the patient with a copy of his or her test results is an aspect of the doctor-patient partnership. In addition, another redundancy to prevent things from "falling through the cracks" is to call or notify all patients in writing of their test results, whether positive or negative. Patients should be told that if they aren't contacted by the physician's office within so many days after the test that they should call in for the results.
In this case, there was testimony that the cancer that ultimately killed this patient occurred after the first dilation and curettage. However, because the tissue from that first procedure was inadequate for diagnosis, that is questionable.
While most physicians still maintain an independent practice, separate from the hospital setting, more hospitals are buying practices and employing physicians. Hospital-based risk managers should work with physicians' offices that are part of the organization to assess and implement systems to track the results of tests and consults ordered. When results are not returned within an appropriate time frame, steps should be taken to obtain the results. In addition, physicians always should initial and date reports to verify that they have actually reviewed the report.
A woman presented at her gynecologist's office with complaints of post-menopausal bleeding. The gynecologist ordered a pelvic ultrasound, which displayed abnormal findings.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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