Who is liable when the failure to pay attention to a pathology report results in a delayed diagnosis of invasive cancer?

When Mr. B, 60, began seeing blood in his urine, he became alarmed and immediately made an appointment with a urologist, Dr. D, 71. The physician examined the otherwise healthy patient and decided to perform a cystoscopy which revealed a tumor in the patient’s bladder. The urologist fulgurated it and obtained bladder biopsies that were sent to the lab.

When the pathology report came back, it showed invasive high-grade urothelial carcinoma involving the bladder lining. In the report, the pathologist noted that he was unable to determine if the cancer had invaded the bladder muscle because the urologist failed to obtain a muscle sample in the biopsies. Dr. D barely skimmed the pathologist’s note, and simply filed the report in the patient’s file with a reminder to do a follow-up cystoscopy.

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Three months later, Mr. B returned for a second cystoscopy. Again, Dr. D found a tumor, fulgurated it and obtained bladder biopsies. Again, the pathology report indicated invasive urothial carcinoma. And again, the pathologist noted that because the urologist had not included a sample of muscle tissue in the biopsy specimens, he was unable to determine whether the cancer had spread to the bladder muscle. Dr. D filed this report with the other one, and told the patient that the two tumors had been destroyed, but that he’d take a “watch and wait” approach and would do additional cystoscopies to monitor the situation. The patient, who had not seen the pathology reports, agreed.

Over the next two years, Mr. B had three other cystoscopies. None of the three revealed cancer, but none of the biopsies contained muscle tissue. During the fourth cystoscopy, however, Dr. D observed a large bladder tumor and took a biopsy sample that contained muscle. The biopsy revealed that Mr. B’s bladder cancer had in fact invaded the muscle wall and metastasized. In an attempt to prevent the cancer from spreading, Mr. B’s bladder was removed and he went through months of chemotherapy.

On the advice of a friend, Mr. B sought the counsel of a plaintiff’s attorney. Mr. B wanted to know whether his cancer should have been caught earlier and if better care would have provided him with a better prognosis. The attorney ordered the medical files and had several medical experts look at them. All of the experts who were consulted told the attorney that Dr. D should have heeded the advice of the pathologist and taken a sample of the bladder muscle for biopsy purposes, and that had the cancer been diagnosed earlier, Mr. B would have had a better chance of survival.

Before the attorney filed a lawsuit against Dr. D, it was discovered that Mr. B’s bladder cancer had already spread through the bladder prior to its removal and into his lymph nodes, and ultimately had metastasized into his bones. Mr. B passed away just as the lawsuit was filed, and his wife was named as the plaintiff. Dr. D was sued for wrongful death and negligence.

The physician was assigned a defense attorney by his insurance company. The first thing the attorney did was to suggest that they get their own expert to counter the expert testimony from the plaintiff’s side. This expert produced a report stating that the standard of care did not require Dr. D to obtain any muscle in the biopsy samples because a visual inspection was sufficient. This report was submitted to the plaintiff as part of discovery. In response, the plaintiff’s expert urologist filed a supplemental report stating that the defense expert was absolutely incorrect in his claim that it was the standard of care not to obtain a muscle sample.

Upon seeing this report, Dr. D and his defense attorney decided to try a new tactic, and they hired an expert pathologist who claimed that Mr. B had not suffered a recurrence of the original cancer, but had died from a new occurrence that had nothing to do with the initial cancer.

“I have to tell you,” Dr. D’s attorney said, “I don’t think our case is that strong. Perhaps you should consider settling.” As the case approached trial, Dr. D considered his options and decided to settle. The case was settled out of court for $425,000.