Is It the Patient’s Responsibility?

by Ann S. Lofsky, M.D., Board of Governors

In modern times, the relationship between physician and patient is often viewed as a collaboration—with physicians offering advice on treatment and testing options, and patients assuming ultimate control of their own health care decisions. A gray area remains, however, in the care of patients who are noncompliant or slow in fulfilling their roles in this process. What is the physician’s responsibility when a patient does not follow directions? The following case illustrates how a problem can arise:

A 52-year-old woman was followed by our insured internal medicine physician for minor complaints over a several-year period. On one visit, the patient complained of large hemorrhoids. She subsequently complained of diarrhea, abdominal pain, and flatulence. A proctoscopic exam was performed, revealing only hemorrhoids. She was placed on a lactose-free diet with some improvement in her symptoms. On each of the next four visits, the patient was given hemocult kits to take home, but despite multiple explanations by the insured regarding their importance, she failed to return them by mail as advised.

Three years later, the patient presented to our insured with complaints of rectal bleeding noted on toilet paper and when straining. The insured performed a rectal exam, which was normal except for several large hemorrhoids. A sigmoidoscopy was performed to 60 cm, revealing only thrombosed hemorrhoids. Again, the patient was given a hemocult sample, which was not returned.

One year later, on a routine office visit, the internist palpated a mass on rectal examination of this patient. The mass was 5 cm in diameter and extended to 5 cm from the anal verge. Biopsy was consistent with Grade 3–4 adenocarcinoma. The patient alleged a delay in the diagnosis of cancer.

Did the Internist’s Care of This Patient Meet Prevailing Standards?

A defense expert internist felt that the insured met the prevailing standard of care. He stated that giving the patient hemocult tests and doing a flexible sigmoidoscopy when she complained of rectal blood were consistent with current screening guidelines. The insured stated that it was never a part of his practice or procedure to follow up with a patient who did not return the hemocult tests. He had office procedures in place for follow-up of missed appointments and rescheduling, but he did not feel it was his responsibility to ensure that patients return their occult blood screening tests.

When asked what he would have done had the patient returned the test, the insured stated that if it were negative, he would have done another proctoscopic exam, followed by a lower GI series. If the hemocult screen were positive for blood, he would have referred the patient to a gastroenterologist for colonoscopy. Overall, defense experts felt the insured actually performed more of a work-up on this patient than many other internists might have done.

The plaintiff’s expert criticized the insured for failing to test for occult blood himself when the patient was in the office, failing to follow up with the patient when she did not return the tests, failing to order a CBC to check for anemia, failing to give the patient instructions for follow-up examination or for any recurrence of the bleeding, and failing to suggest the possibility of referral for evaluation by a gastroenterologist.

The plaintiff’s expert internist felt that the insured further deviated from the standard of care by not ordering a barium enema in addition to the flexible sigmoidoscopy or, alternatively, by not referring the patient for a colonoscopy when she complained of bright red blood by rectum.

Was the Delay in Diagnosing This Cancer Significant?

The patient underwent abdominoperineal resection of the mass immediately on diagnosis. A pathology evaluation revealed an adenocarcinoma infiltrating into the muscularis and adipose layers, with 20 out of 24 lymph nodes biopsied positive. A mass in the mesentery was also removed and found to be metastatic disease. Following surgery, the patient received adjuvant radiation. Liver metastases were subsequently diagnosed, and she expired one year after surgery. Her family continued litigation, arguing that a several-year delay in the diagnosis of rectal cancer had cost the woman her chance for survival.

Defense experts stated this was an extremely aggressive cancer that might not have been visible by exam even six months earlier than it was seen. A high-grade tumor can begin as a submucosal malignant lesion, which is only visible when there is already less than a 50 percent chance of cure. The insured was adamant that he had visualized the entire area where the cancer was ultimately diagnosed by sigmoidoscopy only one year earlier, and the lesion was not present. He, therefore, also believed that it had developed after this time.

The plaintiff’s expert oncologist argued that this tumor was likely present for a minimum of two to three years before metastasizing. He stated that all colorectal cancers come from initially benign polyps or flat lesions rather than starting as carcinoma de novo. He believed that the polyp would have predated the patient’s demise by five to seven years and felt that, had the diagnosis been made at any time during the period when the insured was following the patient, she would have had a higher chance of survival.

Should This Case Be Tried?

All the experts agreed that, had the insured more aggressively followed up with the patient regarding return of the hemocult slides, it is possible the diagnosis of rectal cancer would have been made earlier, improving the percentages of survival. This was felt to be a critical issue because this patient was followed by the insured for such a prolonged period of time, during which she complained of increasingly severe rectal problems. The blood she passed rectally could have been related to the hemorrhoids. Of more concern, however, would have been the presence of blood actually within the stool, which could only have been ascertained with the hemocult slides.

Based on the above concerns and the fact that the patient was employed in a high-earning profession, helping to care for and support four children, the insured gave his consent to settle this case. It was successfully settled prior to going to trial.

This case illustrates one difficulty that can arise for physicians when patients alone are responsible for following up on medical care or testing that is prescribed for them.