Litigating medical professional liability cases involves taking complex information and creating a simple story for the jury or arbitrator. Not including the patient in a treatment decision is just the kind of story that can overshadow all the other things that you’ve done for your patient.
A 52-year-old man consulted with Dr. OS, an orthopedic surgeon, for a second opinion on right shoulder pain going back seven years. Past treatment was conservative for what the patient suspected was a sports injury. Dr. OS reviewed past images and noted apparent calcified tendinitis and evidence of impingement. Dr. OS discussed continued conservative treatment versus arthroscopic evaluation and repair. Nearly a year later, surgery was scheduled but canceled by the patient.
The patient returned two years after that with complaints of severe pain. At that time, Dr. OS recommended surgery but the patient again declined and did not return for another two years. The patient requested a cortisone injection, which Dr. OS administered in the rotator cuff after discussing risks and benefits. When the patient returned the next month, he reported that the injection had not helped and that he wanted injections in five other areas in the shoulder. Those injections again did not help, so Dr. OS ordered an MRI, which the radiologist interpreted as showing a partial bursal surface tear, a biceps tendon split tear, degenerative and hypertrophic changes, and marrow and soft tissue edema.
After discussing the risks and complications of the procedure, Dr. OS’s surgery on the patient included resecting a prominent bone spur and repairing the biceps tendon and deltoid. The patient progressed well after surgery but complained of “hypersensitivity” in the shoulder. When physical examination revealed restricted range of motion from pain, Dr. OS ordered a second MRI.
A second radiologist read that study and reported that the overall appearance of the area had not significantly changed from the MRI conducted three months earlier. He noted no definite rotator cuff tear, but instead “continued diffuse abnormal signal throughout the acromion with some surrounding periosteal edema and signal.”
The radiologist described some other irregularities and ended with: “Recommend a CT scan to evaluate for bone destruction. Infiltrative process is a possibility.”
The chart for the patient’s visit with Dr. OS a week later made no mention of discussing the radiologist’s recommendation for the CT scan. Instead, Dr. OS’s dictated clinic note indicated that no new tears were seen, that the patient felt better overall, and that the patient would continue exercises. If no improvement, neurologic testing would be considered to rule out nerve injury or entrapment. Three weeks later, the patient complained to Dr. OS of occasional numbness, decreased range of motion, and difficulty sleeping from pain. A physician assistant’s notes of the visit charted Dr. OS’s discussion with the patient regarding the MRI’s negative findings for new tears or injuries. When subsequent EMT and nerve conduction studies came back negative, Dr. OS referred the patient to a pain management specialist.
The patient was then treated by a neurologist and a pain management specialist. The pain management specialist referred the patient for an MRI of the brachial plexus. The radiologist reading that test found no nerve root damage but did note an abnormal appearance along the right scapula marrow and associated soft tissue mass. He also noted a small node deep in the pectoralis minor tissue and a 7mm node in the area above the right collarbone.
The next week, the patient underwent an ultrasound-guided core biopsy of the right shoulder mass, which was diagnosed as a malignant spindle cell neoplasm consistent with a sarcoma. Further images confirmed a large hypermetabolic mass in the right shoulder blade area and surrounding soft tissues. The patient sued Dr. OS for failing to follow up on the radiologist’s recommendation for the CT scan for possible bone pathology and infiltration; they resolved their dispute prior to undergoing binding arbitration.
Investigating unresolved medical issues can often involve diverse points of departure. Including the patient in the process when considering treatment options is the best way to make treatment decisions — jointly.
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc. (CAP).
If you have questions about this article, please contact us. This information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.