The plaintiff's expert using the word "chose" repeatedly in their report is rather irksome. The expert cannot know why something was done or not done, e.g., ordering a CXR or not documenting smoking history. Unless the treating doctor specifically documented that they considered and chose not to order a CXR, I think that the expert is using overly aggressive language which assumes intent when it may not exist.
That stuck out to me as well. That phrasing turns non-acts into errors of commission and makes it sound like the defendant intentionally withheld the information from the patient.
Yeah the expert really went overboard. I would have had respect if he had just said "the PCP should have reviewed this at the post-hospitalization follow-up appointment". Instead he went crazy criticizing every little thing and blowing up minor things into huge issues. Really shows how his opinion was swayed by the money he was being paid by the plaintiffs attorney.
Pulmonologist here. We have a dedicated Lung Nodule Clinic where we evaluate lung nodules/masses/abnormalities found on imaging. Unfortunately this is not an automated process, meaning it requires a referral be placed after the abnormality is noted on imaging. I would estimate that at least 5-10% of the cases I review in this clinic are being referred several months to years after the abnormality was first found. Fortunately, the majority of these cases end up being benign but that still leaves a non-insignificant number of cases that likely had worse outcomes because of a miss.
I think this is a great process to reduce the likelihood of these cases. Where do you get most of your referrals from? Are radiologists flagging these nodules for referral and follow-up? Or is it the inpatient teams?
It is a mixture of the patient’s PCP, ordering provider (who gets the scan results) or their inpatient team. Radiology usually puts in follow up guidelines in their report, sometimes even stating referral to lung nodule tracking program should be considered.
Not gonna lie, while plaintiff expert's opinion was a bit overboard on the detail, it seemed pretty damning on paper (at least to my eyes, having no experience with cancer screening guidelines). The issue is when they put all their chips on "this is the cancer you missed 8 years ago," they're vulnerable to the defenses we saw here, i.e. "well actually this looks more like pancreatic cancer" or "it's a different lung cancer." Standard of evidence for med mal is "a preponderance of the evidence," or loosely, "more likely than not." So if the defense could make it a coin flip in the jury's mind, they get the verdict.
Maybe I'm not clear on something though: I thought the statute of limitations starts from the time the patient *learns about* the alleged negligence or its consequences. Maybe that's specific to state law.
I think the defense was able to call just enough questions into the jury's head that they didn't feel comfortable holding the doctor responsible. Its not that they had a bulletproof alternative explanation, it just muddied the waters enough. Re: statute of limitations, I just typed up a response in another comment from Eric S that might be interesting to you.
I wonder if just how overboard the plaintiff expert opinion was backfired on them; it comes off as a Gish Gallop and actually buries any potential mistakes by the PCP in what is, quite frankly, a great deal of irrelevant medical history. It also doesn’t answer a couple important questions that I would have as a juror:
1) Did the dictated discharge summary include mention of the pulmonary nodule? Can’t fault him for not following up on something he didn’t know needed following up.
2) Was it the standard of care to order a chest x-ray routinely on smokers for cancer screening? That should be a simple citation but I don’t recall seeing it. There’s also the subquestion of whether she was being honest with the PCP about her smoking.
Gish gallop...there's a reference I understand, and I think you have a point. There was another recent med mal case where the plaintiff expert who started his opinion by coming off like a self-worshipping douche. This expert doesn't necessarily come off with such bravado but it's kind of a shotgun opinion - just a deluge of irrelevant history and commentary that drowns the actual points to be made. If he provided a similarly scattershot testimony at trial, I could see it being difficult for a jury to follow.
When i see incidentalomas on imaging in ED, i immediately add a diagnosis of abnormal radiologic findings to the patients chart. this not only prompts me to discus it with them at discharge, but i feel it documents that fact as well, it also adds scripted aftercare printouts regarding the imaging.
Good example of imaging increasing medmal risk at times, even though it's ordered to decrease the risk. Lots of things can happen (clinician fails to follow-up, clinician misreads the report, radiologist doesn't communicate well, radiologist misses the finding but whole team gets sued).
I doubt they'd be able to get much from the radiologist even if it didn't extend past the statue of limitations. The rad already said it could be a small tumor in the impression of the report. It has never really been the "standard of care" for radiologists to call about non-emergent findings (although this ultimately comes down to how much of a sympathetic jury/tragic scenario rather than SOC).
That's a great point. Everyone thinks that imaging decreases risk, but there are downstream repercussions that can actually increase risk. I agree that rads shouldn't call for nonemergency incidental findings (in fact, that would be incredibly annoying to get a call on all of them), but you'll always find some money-hungry radiologist who is willing to sign an expert report that the rad should always call.
Great read. The plaintiff’s expert made his point multiple times. Long report.... interesting about statute of limitations. That part doesn’t make much sense unless you start from when pt learns of potential malpractice.
Yes the statute of limitations issue here really confused me because the patient didn't discover the alleged negligence for years, and generally the clock starts when its discovered. The legal theory that got them off the case via the statute of limitations had to do with the "continuing course of conduct doctrine". Apparently the plaintiff had to show that the radiologist had a "continuing duty to the plaintiff that was related to the alleged original wrong, and continually breached that duty". Since the radiologist did not have a continuing duty beyond writing his report, the judge said the statute of limitations did not restart once the cancer was discovered. This is getting into legal theory that I don't fully understand and gets pretty technical so I didn't put a lot of details in the write up.
I looked into this. Most, but not all states follow the "discovery rule" where the statute of limitations "clock" is paused until the patient becomes or should become aware of the injury. My guess is this case occurred in one of the minority of states that don't allow for this exception.
Its not going to prevent a lawsuit, but it might be slightly helpful in defending you if you get sued. Its obviously very cookie-cutter... if it was specific to the patient's exact imaging findings it would be more helpful. I think its fine to keep putting it in there as long as you realize its not a panacea
The plaintiff's expert using the word "chose" repeatedly in their report is rather irksome. The expert cannot know why something was done or not done, e.g., ordering a CXR or not documenting smoking history. Unless the treating doctor specifically documented that they considered and chose not to order a CXR, I think that the expert is using overly aggressive language which assumes intent when it may not exist.
That stuck out to me as well. That phrasing turns non-acts into errors of commission and makes it sound like the defendant intentionally withheld the information from the patient.
Yeah the expert really went overboard. I would have had respect if he had just said "the PCP should have reviewed this at the post-hospitalization follow-up appointment". Instead he went crazy criticizing every little thing and blowing up minor things into huge issues. Really shows how his opinion was swayed by the money he was being paid by the plaintiffs attorney.
Pulmonologist here. We have a dedicated Lung Nodule Clinic where we evaluate lung nodules/masses/abnormalities found on imaging. Unfortunately this is not an automated process, meaning it requires a referral be placed after the abnormality is noted on imaging. I would estimate that at least 5-10% of the cases I review in this clinic are being referred several months to years after the abnormality was first found. Fortunately, the majority of these cases end up being benign but that still leaves a non-insignificant number of cases that likely had worse outcomes because of a miss.
I think this is a great process to reduce the likelihood of these cases. Where do you get most of your referrals from? Are radiologists flagging these nodules for referral and follow-up? Or is it the inpatient teams?
It is a mixture of the patient’s PCP, ordering provider (who gets the scan results) or their inpatient team. Radiology usually puts in follow up guidelines in their report, sometimes even stating referral to lung nodule tracking program should be considered.
Not gonna lie, while plaintiff expert's opinion was a bit overboard on the detail, it seemed pretty damning on paper (at least to my eyes, having no experience with cancer screening guidelines). The issue is when they put all their chips on "this is the cancer you missed 8 years ago," they're vulnerable to the defenses we saw here, i.e. "well actually this looks more like pancreatic cancer" or "it's a different lung cancer." Standard of evidence for med mal is "a preponderance of the evidence," or loosely, "more likely than not." So if the defense could make it a coin flip in the jury's mind, they get the verdict.
Maybe I'm not clear on something though: I thought the statute of limitations starts from the time the patient *learns about* the alleged negligence or its consequences. Maybe that's specific to state law.
I think the defense was able to call just enough questions into the jury's head that they didn't feel comfortable holding the doctor responsible. Its not that they had a bulletproof alternative explanation, it just muddied the waters enough. Re: statute of limitations, I just typed up a response in another comment from Eric S that might be interesting to you.
I wonder if just how overboard the plaintiff expert opinion was backfired on them; it comes off as a Gish Gallop and actually buries any potential mistakes by the PCP in what is, quite frankly, a great deal of irrelevant medical history. It also doesn’t answer a couple important questions that I would have as a juror:
1) Did the dictated discharge summary include mention of the pulmonary nodule? Can’t fault him for not following up on something he didn’t know needed following up.
2) Was it the standard of care to order a chest x-ray routinely on smokers for cancer screening? That should be a simple citation but I don’t recall seeing it. There’s also the subquestion of whether she was being honest with the PCP about her smoking.
Gish gallop...there's a reference I understand, and I think you have a point. There was another recent med mal case where the plaintiff expert who started his opinion by coming off like a self-worshipping douche. This expert doesn't necessarily come off with such bravado but it's kind of a shotgun opinion - just a deluge of irrelevant history and commentary that drowns the actual points to be made. If he provided a similarly scattershot testimony at trial, I could see it being difficult for a jury to follow.
When i see incidentalomas on imaging in ED, i immediately add a diagnosis of abnormal radiologic findings to the patients chart. this not only prompts me to discus it with them at discharge, but i feel it documents that fact as well, it also adds scripted aftercare printouts regarding the imaging.
Good example of imaging increasing medmal risk at times, even though it's ordered to decrease the risk. Lots of things can happen (clinician fails to follow-up, clinician misreads the report, radiologist doesn't communicate well, radiologist misses the finding but whole team gets sued).
I doubt they'd be able to get much from the radiologist even if it didn't extend past the statue of limitations. The rad already said it could be a small tumor in the impression of the report. It has never really been the "standard of care" for radiologists to call about non-emergent findings (although this ultimately comes down to how much of a sympathetic jury/tragic scenario rather than SOC).
That's a great point. Everyone thinks that imaging decreases risk, but there are downstream repercussions that can actually increase risk. I agree that rads shouldn't call for nonemergency incidental findings (in fact, that would be incredibly annoying to get a call on all of them), but you'll always find some money-hungry radiologist who is willing to sign an expert report that the rad should always call.
Great read. The plaintiff’s expert made his point multiple times. Long report.... interesting about statute of limitations. That part doesn’t make much sense unless you start from when pt learns of potential malpractice.
Yes the statute of limitations issue here really confused me because the patient didn't discover the alleged negligence for years, and generally the clock starts when its discovered. The legal theory that got them off the case via the statute of limitations had to do with the "continuing course of conduct doctrine". Apparently the plaintiff had to show that the radiologist had a "continuing duty to the plaintiff that was related to the alleged original wrong, and continually breached that duty". Since the radiologist did not have a continuing duty beyond writing his report, the judge said the statute of limitations did not restart once the cancer was discovered. This is getting into legal theory that I don't fully understand and gets pretty technical so I didn't put a lot of details in the write up.
I looked into this. Most, but not all states follow the "discovery rule" where the statute of limitations "clock" is paused until the patient becomes or should become aware of the injury. My guess is this case occurred in one of the minority of states that don't allow for this exception.
Its not going to prevent a lawsuit, but it might be slightly helpful in defending you if you get sued. Its obviously very cookie-cutter... if it was specific to the patient's exact imaging findings it would be more helpful. I think its fine to keep putting it in there as long as you realize its not a panacea