Dr. K, 64, had a busy urological practice that he shared with a younger partner. The practice was thriving, but after 30 years, Dr. K was looking forward to retirement. The long days, emergency calls, and sometimes cranky patients, combined with diminishing payments, made the prospect of golf and tennis at a retirement villa more attractive each day. Still, Dr. K had at least another year or two to go, and new patients kept on coming in.
Stone suspected
One such patient was Mr. R, a 52-year-old truck driver who presented with complaints of pain in his left flank. When questioned about other symptoms, the patient noted that his urine looked “kind of dark.” Dr. K performed a physical examination, which did not reveal anything abnormal. A urinalysis detected mild hematuria, so the physician sent Mr. R for a sonogram.
The results of the sonogram revealed that a stone was present the patient's right kidney. The results did not reveal an abnormality in Mr. R's left ureter, but Dr. K suspected that it contained a stone. He told the patient that it was his opinion that the stone was the cause of the patient's hematuria and pain. “You're going to need to come back for a follow-up appointment,” the physician said.
Ten days later, Mr. R returned to the office, and Dr. K performed an X-ray. After looking at the results, the physician told the patient that he did not detect any abnormalities, and that Mr. R should increase his fluid intake.
Two months later, the patient returned, without an appointment, on a day when Dr. K was out. The patient told the nurse that he had noticed discoloration in his urine again and had brought a sample for the doctor. Dr. K's partner evaluated the sample and determined that blood was not present. He told Mr. R to call later in the week, when Dr. K would be back. The partner did not, however, make a note in Mr. R's file about the discolored urine.
But Mr. R did not call or return to Dr. K at all. Instead, eight months later when he noticed discoloration in his urine again, he went to another urologist. The new urologist ordered a computed tomography (CT) scan that revealed stage III cancer of the left kidney. Ultimately, Mr. R underwent a nephrectomy to remove the cancerous kidney.
A visit to a new urologist
As he recovered from surgery, Mr. R complained to his wife: “If that first doctor would have caught this, maybe I wouldn't have had to have my kidney removed!” His wife suggested that they speak to an attorney. The plaintiff's attorney that they consulted agreed to take the case and sued Dr. K and his practice. The lawsuit alleged that Dr. K had negligently failed to diagnose the cancer during those first visits and that an earlier diagnosis would have resulted in a more favorable result.
Dr. K was dismayed at the suit. He had hoped to retire without ever being sued, but his desire was now thwarted. The defense attorney provided by his insurance company was reassuring. After hiring an expert to go over the medical records, the attorney believed that they had a shot at beating the case and suggested that settling might not be the best tactic. It turned out that there was no option for settling anyway, as Mr. R was insistent on having his case go before a jury.
At trial, the plaintiff claimed that his original symptoms should have prompted Dr. K to perform a CT scan. The plaintiff introduced an expert urologist who testified that she would have conducted a CT scan if a patient came in with complaints similar to Mr. R's. The plaintiff also contended that when Mr. R returned with the urine sample, Dr. K's partner should have performed an examination of the patient rather than just looking at the urine.
The defense introduced its own experts—an oncologist and a urologist—who opined that a CT scan was not necessitated by anything Dr. K observed during his first two examinations of the patient. They concurred that Dr. K had every reason to believe that a kidney stone was in Mr. R's left ureter and was the cause of the problem.
Dr. K himself took the stand to say that he was unaware that Mr. R had returned two months after the original visit, and had he known that the hematuria had returned, he would have examined Mr. R again. “But he never called or came back,” said the physician, “and my partner didn't mention the visit.”
The defense's oncologist also testified that Mr. R's outcome would likely not have been different even if the cancer was diagnosed eight months earlier, and that the treatment would have been the same. The disease had not recurred in the patient since the operation, he noted. The jury deliberated for two hours and came back with a verdict in favor of Dr. K.