What happens if you are sued by a patient whose testimony in court is completely different from the actual events? This happened to Dr. F, 52, a urologist with a small practice consisting of three physicians.

His patient, Mr. U, 47, came in with complaints of blood in his urine and pain during urination. The patient had been referred from another physician, and this was Dr. F’s first experience with him. According to the patient and the referring physician, there was no prior history of either complaint. After an examination, Dr. F diagnosed the patient with a urinary tract infection and hematuria.

Within the week, the patient was treated by the physician with cystourethroscopy, catheter placement, and bladder irrigation, and he was prescribed an antibiotic and bladder anti-spasm medication. The patient came back for a follow-up appointment two weeks later. At that time, his urine was clear and he was asymptomatic.

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“If you have any further problems, come back in,” the physician said.

A month later, Dr. F’s receptionist stopped him as he was headed into an exam room to see a patient.

“Mr. U is on the phone,” she said. “He said that he saw blood in his urine again, and that it hurts to urinate.”

“Tell him to come in,” replied Dr. F, as he stepped into the exam room.

The patient did not come in, however, and Dr. F did not hear back from him for another six months. The physician was returning from lunch when his receptionist notified him that Mr. U called with the same complaints as before, and that she had again told him to come to the office. Again, the patient failed to show up.

Dr. F did not think much about it until several months later when he was served with papers informing him that he was being sued by Mr. U for medical malpractice. According to the papers, Mr. U had been diagnosed with renal cell carcinoma that had metastasized to both lungs. The patient was claiming that Dr. F’s failure to make a timely diagnosis of the kidney cancer had cost him his chances for survival.

Dr. F was stunned. He rushed to get the patient’s file to look it over again. Skimming it, he still felt that his initial diagnosis of a urinary tract infection made sense. He called his receptionist in and quizzed her about how many times Mr. U had called after his last visit, and what he had said. Then he called his attorney to defend him against the suit.

“According to the legal papers,” the attorney said, “Mr. U claims that he called your office numerous times and was told that he didn’t need to come in.”

“That’s not true,” replied an agitated Dr. F. “He called twice. My receptionist told him to come in, and he didn’t.”

“Did you ever personally speak to him when he called?” the attorney asked. “Did your receptionist make a note in the patient’s file as to when the calls took place and what was said?”

“Well… no,” said the physician. “Is that going to be a problem?”

“It might. What it is going to boil down to is your—or your receptionist’s—word against his. The jury will have to decide who they believe.”

The case proceeded to trial. At trial, Mr. U took the stand and related how he had been treated by Dr. F, and how he began experiencing problems again within a month after treatment.

“I called his office numerous times,” the plaintiff testified to the jury. “I was always told by the receptionist that it wasn’t necessary for me to come in. I believed that, until finally I called someone else for another opinion, and I was diagnosed with cancer.”

Mr. U went on to describe how his quality of life had drastically changed, and how he and his family were suffering knowing that his cancer was incurable.

The plaintiff’s attorney then put an expert physician on the stand who testified as to Mr. U’s poor prognosis due to the metastatic cancer.

When it was the defense’s turn, Dr. F testified about the patient’s presenting symptoms and why he had made his diagnosis. He told the jury that he’d told the patient to come back if there was any problem, but that Mr. U did not return.

Dr. F’s receptionist took the stand and testified that Mr. U had only called twice, and that she had clearly told him to come into the office. When cross-examined, however, she was forced to admit that she hadn’t written this in the patient’s file.

Finally, the defense introduced its own expert physician who testified that Dr. F’s initial diagnosis was reasonable, and that there was no evidence as to when the cancer had metastasized.

The jury deliberated for several hours before finding Dr. F 53% negligent and the plaintiff 47% comparatively negligent. The jury awarded the plaintiff $500,000, which was then reduced by the amount of the plaintiff’s negligence.

Legal background

Comparative negligence allows injured parties to recover damages even if the injured party was partially responsible for the injury. The judge or jury apportions a percentage of fault to each party and then any monetary award is reduced accordingly. There are two types of comparative negligence: pure and modified. In the pure system, even if the injured party was responsible for 99% of his injuries, he or she could still collect 1% of any award. In the modified system (followed by the majority of states), if the injured party is found to be more than 50% at fault, he or she cannot recover any damages. In this case, because Mr. U was found to be less than 50% at fault, he could recover a percentage (53%) of the jury’s award.

Protecting yourself

Clearly, the jury had trouble deciding whose testimony to believe in this case, which is why both parties were found partially at fault. Dr. F could have reduced his liability with better record keeping. If a patient calls with a complaint and is told to return to the office, a note of that conversation should be made in the file. This protects the physician and also alerts the physician that there may be a potential problem. If the patient does not come in, the physician (or his receptionist) might call the patient if a note had been placed in the file.

While the patient was clearly somewhat at fault for not getting himself to the doctor’s office, the fact that the receptionist did not make a note of the conversations and no follow-up on the part of the doctor’s office took place put Dr. F is a weaker position. Clear record keeping could have absolved Dr. F of most, if not all, liability in this case.