Forget it vs. Lawsuit?

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xcsdwe23

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Case Scenario :

50 y/o male with 30 pack yr. smoking hx has CXR that was read as "4cm large mass in right lower lobe, possible old granulomatous lesion, lesion appears benign, no previous xrays to compare" (not word for word, but you get the point). Was told not to worry about it by PCP--that was September 2000.

Same man, two years later, breaks arm d/t pathological fx. Is diagnosed w/ lung ca w/ mets to bones and brain. Dies four months after dx.

Is anyone at fault?
Nobody is at fault, sometimes this **** just happens?
The man for not following up when told "don't worry"?
The PCP for not ordering a CT and/or lung biopsy?
The radiologist for not suggesting CT or lung biopsy?

Would you be inclined to do anything? Forget about? Further investigate this incident to see if there was negligence?

At some point, my dad (i.e. the patient described above who died) requested copies of his medical record and "hid" them to be found after he died (which just happened). He was the primary income, so after he died $$ was tight. You see where this is going.

As I am less than a year away from finishing med school, I sit here with mixed emotions. Would I want to be sued if I were the PCP or radiologist in this case? No. But isn't that why we carry malpractice insurance? To compensate for our errors?

Just curious as to what people think about this?

Addendum to Post:

I just found out about this yesterday, so I don't have all the facts as I am in a different state than my mom. I am going to get my dad's old records at some point and look over them--mainly out of curiosity, not because I am eager to find info for the purpose of a lawsuit.

Since this is all speculation until his records are reviewed, let's agree that the discussion would not need to proceed if in fact he was told to follow up with a pulmonologist or surgeon, and didn't. In that case, it's was his own damn fault (we never knew he had the initial CXR in 2000 until it was found yesterday by my mom who was cleaning).

After reading Harrison's quickly this morning, I learned that 35% of solitary pulmonary nodules in adults are malignant. If one is younger than 35 y/o, they can have CXRs q 3 months for one year. If the person is older than 35 y/o and has a hx of smoking, a histological diagnosis is necessary--usually via resection of mass (which would be "curative" if no mets).

My question from here is purely economic, and not emotional:

If he would have been diagnosed and treated as stage 1 non-small cell lung ca, instead of diagnosed with stage IV w/ mets, how much longer would he have lived?

I don't know survival percentages off the top of my head, but I think we can safely say he would have lived longer if he was diagnosed and treated in 2000 instead of 2 years later.

If there was gross negligence by the physician(s), would it be unfair to seek monetary compensation for lost wages by the spouse?

$85,000/year x Y years (for whatever the prognosis is for stage 1) minus the two years that he lived unknowningly with the CA

My old man was a professor and actually worked up until 3 weeks before he died.

Whaddya think?

As for the lesion in 2000 not being the cancer, I don't think that could be true. Though I never saw any of his xrays, I do remember one of his docs saying that his mass was in the R lung.

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Sometimes people smoke for 30 years and **** happens. I wouldn't sue, and am sorry for your loss.
 
I'm not a PCP or Radiologist.

The fact that the man did it to himself by smoking for 30 years aside: not following up on a lung mass in someone with a 30-year hx of smoking seems like poor judgement to me, if things happened as you say they did.

For as adamantly anti-smoking as most PCPs are, to simply say "don't worry about it" seems wrong.

Would I sue? I don't know, probably not. He smoked for 30 years, and you can't blink without seeing a "enjoy your cigarette but it's gonna kill you with cancer" billboard. I don't think it would be an easy case to win.

Very, very sorry that this happened to you. :(
 
Sorry for your loss. That is a tough question. I would say that at least a follow up cxr would have been reasonable. I would probably not sue though because that would add to the current med mal problem. You could report this to the state med board. That would ensure that the players and processes are reviewed without furthur corrupting the system.
 
Hey, very sorry for your loss. A friend's mom was just diagnosed with stage 4 non-small cell lung CA. Sucks all around.

Would biopsy/further work up at the time have changed the outcome? You didn't say what kind of tumor it was, but seems unlikely to have a 4cm lung mass without mets. Remember, there are 2 parts to malpractice -- the negligence and the "would it have changed anything" factor.

Personally, I have struggled with this very hypothetical - what if I or a family member had a bad outcome? In this case, I agree, it would be a hard case to win.
 
I think anger over the loss of a loved one can be a normal part of the grieving process. Retrospectively, it is very easy to look back after someone passes and find things that could have changed their outcome in some manner, and then direct our anger at that person or thing.

When my father was diagnosed with ESRD, I was angry at him for not trying harder with his diet and exercise regimen. I was angry at him for being too complacent, and not putting enough attention toward his health at an early age. It was very frustrating to look back, knowing that it was already too late, and that I myself could have tried harder to intervene and get him to comply with those things.

At some point though, every individual must take responsibility for his/her actions and choices. Could the PCP or radiologist have done more? Knowing what we know now, of course they could have. But I wonder if you are also angry with your father for not trying harder to quit smoking or even yourself for not doing more to help him quit, just as I tried blamed myself for my father's condition. I found it difficult to openly express my anger with my father, because he was ill, and I wonder if at some level you feel similarly because your father has passed.

The decision to sue is a very emotional and personal one. No one can make it for you. I would suggest, however, that those physicians that were charged with you fathers care very likely acted in good faith, and were acting in his best interest with the information they had at the time. Just as you very likely have acted in his best interest as his son.

This is a very personal issue, and I am very sorry for your loss.
 
Was the lesion mentioned actually found to be the cancer later? Could the 4cm lesion been an old granulomatous lesion after all?
 
edinOH said:
Was the lesion mentioned actually found to be the cancer later? Could the 4cm lesion been an old granulomatous lesion after all?

Good thinking, I'm impressed. I didn't think of that, but you could be right.
Would I sue? In situations like this I can't help but think "There but for the grace of god go I" ie we all make mistakes & I couldn't hate the other doc for making a mistake. I know I will make mistakes & I'll never do it on purpose, but as much as I try to be obsessive & not miss things, I'm sure it will happen. If the other doc was reckless or dangerous, that's a different issue. If that was my Dad, I don't think I could get past the question "Why didn't he do a follow-up Xray?"
Tough situation. Sorry for your loss. Life can be cruel sometimes. Will a lawsuit make you feel better?
Best wishes what ever you decide
 
If it'll give you any closure, confront your father's primary care doctor who told him to "forget about it" and ask him about the issue. That's what I'd recommend.

I doubt a lawsuit will make anyone feel any better, and it would be difficult to prove damages if no post-mortem was performed. I think the poster who recommended against suing just because it would contribute to the med mal problem is horribly misguided. Mistakes in judgment and performance that do not meet the standard of practice are exactly what the medical malpractice system was set in place to recompense. If there was truly such a case here, you morally have the right to sue (which is not the same as saying that it would be the best thing for you or your family to do).
 
If i really thought the doc was neglegent, which may be the case here, i would sue for economic damages. Did he have life insurance BTW?
 
This closing of ranks is more than a bit disgusting. Why are people defending this huge miss? This may have been a system failure - but even a medical student knows the proper workup for any lung mass in a smoker - this was an issue, where was the tissue?

Why are people victim blaming? Yes, people smoke and get lung CA. How is that relevant? This man was told not to worry about it! That's wrong!

The facts of the case, as I understand them, indicate that a man with an abnormal chest XR was given improper information resulting in a DELAY IN DIAGNOSIS! This sounds a bit fishy - but only because it's so far from the standard of care! Could a proper workup have extended life? Perhaps. We don't know based on this information, but I'd hazard a guess: yes.

btw, you don't need to "prove" your case to a jury - this case would be expected to settle way before that.

Your lawyer will correctly tell you to sue everyone involved in the case. And when you walk into the office of that lawyer, you're going to be his wet dream.
 
I think that there is more to this story. I find it hard the believe that a PCP or Radiologist said, "See this 4 cm mass in your lung? Don't worry about it."
 
Should have followed up. Knowing the history, the PCP dropped the ball. I see docs everyday that follow up on absolutely nothing, just to be sure. You have to do it in this case.

Admittedly, you were not going to save this mans life, lung CA would have gotten him eventually. But could he have gotten 5 extra years, or gone through smoking cessation counseling, been scared out of his mind to quit and be healthier, he most definitely would have lived longer.

Its the PCP's responsibility and he should have followed through with it. Not to do so is negligence. Sue if you believe that is what malpractice insurance is for. You certainly would not be suing for bad outcome, but rather for neglect. Maybe nobody is at fault, but when your doctor tells you not to worry about it, most people dont worry about it. It is an important responsibility.
 
JBJ said:
I think that there is more to this story. I find it hard the believe that a PCP or Radiologist said, "See this 4 cm mass in your lung? Don't worry about it."

I actually think this is the most reasonable view.
 
Two years ago, our family was in a similar situation. I was a med student, my dad a doctor. We had a family member in the hospital who had surgery with a fatal outcome. Several family friends, including doctors, suggested a lawsuit due to probably inappropriate management of medications pre-op which MAY/MAY NOT have been the cause of death (other than the failed surgery.) We will never know for sure.

We are, in general, the kind of people who take what life has handed us, even howeverso bitter. There were lots of emotions that we had to be aware of: denial, guilt, shock, anger, bitterness, loss, hope, etc. Ultimately, there was no lawsuit - life went on. We were not looking for financial gain - just something to help this tragic mistake from happening to the next person.

If there's any way to "sue" (and I'm not a legal person, so I know nothing about the process) without seeking financial rewards - maybe just to have the doctor placed on probation or require some additional training/education to continue practicing, that would be an ideal case for many of us who are not looking to make a quick buck but rather to help improve the system and keep people honest, thus not further degrading the field of medicine. I understand that your family is in a tight financial situation now - but of course you already know how expensive the courts would be, and is it a case that you definitely think you could win?

Sorry for your loss. Been there.
 
There are many elements to this situation.First my condolences on your loss.It needs to be determined exactly what the radiologist advised.Its rare they would not suggest follow up studies for a lung mass.What specifically did the PCP document concerning this? A patient may be told one thing by a physician and come away from the office with a totally different interpretation of the conversation.Denial is a powerful force.You need to look at the records closely.Since this is on your mind a consultation with an experienced med-mal attorney may be in order.They can tell you pretty quickly if there is a case,the good ones turn down the vast majority of potential cases brought to them.There is a statute of limitations to consider so you should move forward soon if the facts suggest serious negligence.
 
JBJ said:
I think that there is more to this story. I find it hard the believe that a PCP or Radiologist said, "See this 4 cm mass in your lung? Don't worry about it."

I too, am a little confused by all of this. Which is why I am thinking there was either gross negligence by a physician or my dad was in denial. The reason I think it is more likely a case of negligence--why else would he go and get copies only of this one CXR and hide this info in the house where it would be found after he died? Is it logical for me to think he realized he got screwed by the first doc, but didn't want to spend his last months of life complaining (or hearing me bitch) and could die in peace? Why else would he have hidden only that one CXR? Any ideas?

Again, this is all speculation until I get a chance to look over his medical records--which will be in a few weeks. I am not "lawsuit happy". I just am very very curious about the details surrounding all of this.

Thank you all for your input, and please keep posting your comments. I'll post any updated info when I learn more.
 
Sessamoid said:
If it'll give you any closure, confront your father's primary care doctor who told him to "forget about it" and ask him about the issue. That's what I'd recommend.

I doubt a lawsuit will make anyone feel any better, and it would be difficult to prove damages if no post-mortem was performed. I think the poster who recommended against suing just because it would contribute to the med mal problem is horribly misguided. Mistakes in judgment and performance that do not meet the standard of practice are exactly what the medical malpractice system was set in place to recompense. If there was truly such a case here, you morally have the right to sue (which is not the same as saying that it would be the best thing for you or your family to do).

Med mal has nothing whatsoever to do with right and wrong. It's all about money. It's a broken system. If someone is interested in making a buck (or a lot of bucks) they can furthur corrupt the system by entering the med mal racket. If someone is interested in right and wrong go through some other avenue like the med board.
 
docB said:
Med mal has nothing whatsoever to do with right and wrong. It's all about money.
I thought it was pretty clear that I was speaking of the OP's legal rights, not moral rights. I suspect you knew that, though.
 
xcsdwe23 said:
Case Scenario :
Is anyone at fault?
Nobody is at fault, sometimes this **** just happens?
The man for not following up when told "don't worry"?
The PCP for not ordering a CT and/or lung biopsy?
The radiologist for not suggesting CT or lung biopsy?

1. The radiologist is clearly not at fault. As most radiologists do, he put down what he thought it was but did not state his strong feeling one way or the other regarding further work-up referral. They read films without seeing patients. They can really only be held accountable for not seeing a clearly visible mass.

2. The PCP is most likely at fault. It was his job as both the person who knew the patient the best and the care coordinator to 1) make a decision regarding further work-up after he read either the film or the radiologist's report given the patient's smoking history, or 2) arrange for close follow-up. It was not the PCP's job to decide whether this was curable or not. His job was to either do more work-up before referral or refer. He is not trained to make decisions about the resectability of such masses and the staging of cancer, although anyone with half a brain would know 30 yrs smoking hixtory PLUS a 4-cm mass (not 4 mm, not even 1 cm) require further work-up or at least referral.

3. Whoever said it was the patient's own doing of smoking that led to this should be referred to the aforementioned PCP for anything wrong with him. It is grossly irresponsible for any medical professional or trainee to point fingers at the patients in this situation.
 
Just as EdinOH pointed out, from a medical point of view only, the first thing to determine is whether that 4 cm lesion seen on the initial Chest Xray turned out to be the actual culprit or not; i.e. determination of cause. An plausible alternative explanation may have been development of another cancer somewhere else in the lung and subsequent spread. Four years is enough time for a cancer to develop and metastasize. This can only be determined by a biopsy or an autopsy. Serial CXR or Chest CTs may have been helpful, but not definite.
 
First off, sorry about your loss. One of my parents is a smoker and won't quit, and I fear they'll suffer the same fate.

Regarding lawsuits, siphoning money out of the healthcare system isn't going to bring anyone back, and has never been shown to be an effective "deterrent" against future mistakes. If it was, the rate of errors would be dwindling, and we know that's not happening. Further, the lawyer that would represent you would take 25-40% of the suit, plus however many $100 phone calls and such they'll tack on (I temped once in a litigation house, and know well the outrageous billing that goes on). So it's something to keep in mind.

Probably a better tack would be to confront the people who made the decisions regarding your father's care, and reinforce how negligence (if there was any) can lead to tragic outcomes. I can't say who's at fault, but as most institutional errors go (that involve multiple parties), it's usually the breakdown of more than one person.

Again, sorry about your loss. I hope this post isn't too harsh, but I just wanted to throw in my two cents.
 
Also: Each expert witness charges thousands of dollars to testify. They are required if the case goes to court (not settled out of court). This is on top of the attorney's percentage from any settlement collected.

Another option if you are familiar with the law: small claims court
In my state (California), the max award for each claim is $5000 from each defendant so small claims court could be a viable option if you have multiple defendants and you are willing to do the work. You don't need expert witnesses if you can find some decent papers from journals. Since neither party in a small claims court case is allowed to have any attorney present in the courtroom, you don't share the settlement with your attorney. If a hospital is a defendant, then it may provide a written statement to the court or have a spokesperson (not an attorney) testify. If you are interested in the small claims court venue, then go to the small claims court office and talk to the clerk.

Make sure your father never signed an arbitration agreement. At least in California, these agreements are binding.

Karin
 
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