Mr. G, a 60-year-old nonsmoker, went to the hospital to have stones removed from his bladder. It was a simple enough procedure. His urologist, Dr. D, had ordered all the pre-op tests, including the chest x-ray mandated by the state for every patient over 50 who would be undergoing anesthesia.
The surgery went without a hitch, and Dr. D, 48, assured his patient that the stones would no longer be a problem. Mr. G went home relieved, but his relief was short-lived.
A spot on the lung
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The pre-op chest x-ray revealed a small lesion on Mr. G’s lung consistent with cancer. The radiologist noted it on the x-ray and commented in the chart that the patient should be notified. During her surgical prep, the anesthesiologist noticed the notation, but she did not mention it because “it wasn’t her business.”
Dr. D never bothered to look at the x-ray at all. As far as he was concerned, the x-ray was a state requirement; it was not something he was interested in or would have ordered. His function was to remove the bladder stones, and that is what he did.
Four months after the surgery, Mr. G began coughing up blood. Alarmed, he went to his general practitioner who sent him for a chest x-ray that revealed a fist-sized tumor. He was immediately referred to an oncologist who performed a biopsy and gave him the bad news: He was suffering from an aggressive and inoperable cancer. His only option was chemotherapy.
“I don’t understand,” Mr. G said to the oncologist. “I had a chest x-ray at this hospital four months ago, and it was fine.”
The physician nodded sympathetically. “Sometimes tumors grow so fast that they can be undetectable even a few months before.”
Mr. G’s daughter, coincidently a physician in the same hospital, decided to take a look at the original x-ray. To her shock she found that the spot on the lung had been noted but not mentioned to anyone four months earlier.
Despite several rounds of chemotherapy, Mr. G died just eight weeks after his cancer diagnosis. One of his final requests was that his wife and daughter sue the urologist for not notifying him about the results of the original chest x-ray. They followed his instruction and hired a plaintiffs’ attorney shortly after Mr. G’s death.
Dr. D’s insurance company provided him with a lawyer, who recommended they try to settle out of court. Their offer of $25,000 was rejected by Mr. G’s family.
“Don’t worry,” the defense attorney said. “They have to prove four things in order to win: a duty on your part; a breach of that duty; causation — meaning that the breach caused the injury; and damages.
At trial, Mr. G’s family introduced evidence showing that Dr. D had ordered the x-ray, and the results — with the spot noted — had been placed in the patient’s file, but that Dr. D never bothered to inform the patient about the findings. They brought in an expert oncologist to testify that had the cancer been caught earlier, more treatment options would have been viable, buying Mr. G months or even years of life.
When it was the defense’s turn, they introduced their own expert oncologist who pointed to the speed at which the untreated tumor had grown and the inability of chemotherapy to slow its progress. This, he explained, was evidence that an earlier diagnosis would not have helped Mr. G — the cancer was just too aggressive.
Then Dr. D took the stand. He testified that it was not his responsibility to look at the x-ray. “I’m not really the one who orders it, although my signature is on the form. The state mandates that the x-ray be taken for the hospital, but it’s not my business. I just handle the urological part.” After deliberating for several hours, the jury did not find Dr. D liable.
