Following Up When a Specialist Offers Advice

When a specialist comes back with less than clear-cut test results, it is not unusual to see a report that contains politely worded recommendations for further workup. Don’t let the deferential language lull you into complacency.

A 37-year-old mother of three had been a patient of Dr. OB, an obstetrician, for seven years when she presented to him four weeks pregnant with complaints of nausea. Though the non-invasive prenatal testing the next month was characterized as “non-reportable,” Dr. OB charted a call from the lab indicating possible trisomy 21 and other abnormalities that could relate to fibroids or occult malignancy.  Dr. OB referred his patient to a maternal-fetal medicine specialist, where she underwent an AFP test, ultrasound, and amniocentesis. The AFP was normal and initial concerns from the ultrasound were later cleared with the amniocentesis results. When the patient returned to Dr. OB several days after the testing, she complained of a left breast lump. Dr. OB examined the breast and noted that it felt quite enlarged with no discrete mass.

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Three weeks later, the genetics center’s full report to Dr. OB addressed the earlier “non-reportable” blood test and commented that possible explanations included laboratory error, maternal fibroids, fetal aneuploidy, or maternal cancer. The report then continued, in bold print: “The patient’s amniocentesis results are now available and indicated a normal fetal karyotype of 46,XX. Additionally, no evidence of maternal fibroids were found. Due to the indeterminate NIPT results we discussed the option of a repeat CBC to screen for cancers of the blood. Additionally, a referral to Oncology can be considered with discussion of full-body MRI. These recommendations were discussed with the patient.”

The patient returned to Dr. OB three weeks later complaining of frequent headaches; the chart showed no discussion regarding the genetics center’s recommendations. A fetal ultrasound three weeks later was normal as was an anatomical scan a month hence.

Two months later, an episode of chest pain, breathing pain, and coughing improved over several days, though the patient reported being very uncomfortable having “runs of contractions.” Dr. OB scheduled the woman for an elective induction.

Following the delivery, the patient was noted to have a large, inflamed left breast. A consulting surgeon performed a punch biopsy, which showed high-grade infiltrative ductal carcinoma. An MRI of the breasts suggested malignancy in the right breast while the left breast showed an extensive tumor with distorted anatomy, skin thickening, nipple involvement, and left axillary adenopathy. A bone scan showed metastases and a chest CT scan indicated pathologic fractures at T3, T4, T5, and T10.

When the patient presented to an oncologist two weeks later, she reported having a breast lump prior to pregnancy, that nothing was found on exam, and that the lump grew during pregnancy.

The patient underwent chemotherapy, a craniotomy for brain metastases, radiation therapy, and a bone marrow transplant. The patient initiated a lawsuit against Dr. OB, but died before litigation concluded. Her family then pursued a wrongful death claim.

In addition to focusing on Dr. OB’s failure to refer the patient to an oncologist following the genetics center’s recommendation, the family claimed that pap smears performed by Dr. OB years earlier identifying atypical squamous cells and high-risk HPV DNA put the mother at high risk for breast cancer. The family also cited deposition testimony of the patient claiming that during a well-woman exam prior to her pregnancy, she asked Dr. OB about a left breast lump. Though Dr. OB’s record of that visit shows “no breast problem,” the patient’s testimony was that Dr. OB responded to her question by asking her about her menstrual cycle, attributing the lump to hormones, and saying that she shouldn’t worry about it.

The family and Dr. OB resolved the litigation informally.

Medical malpractice litigation often includes divergent testimony between a patient and physician and invariably involves competing views among expert witnesses, leaving a jury to decide whom to believe. A recommendation in the medical record by a consulting specialist that is never addressed by the treating physician, however, can provide the tipping point for a plaintiff award against the physician.

More importantly (and long before litigation), a treating physician’s timely discussion with a patient regarding a specialist’s pointed concerns can give everyone the opportunity for the best possible medical outcome.  

Gordon Ownby retired as CAP’s General Counsel in November.