When communicating with patients, a physician’s “custom and practice” as to what he or she advises is often an acceptable substitute for granular detail in a chart entry. But when the physician departs from his or her custom and practice, it’s easy for things to go wrong.
A 34-year-old woman visited Dr. GS, a general surgeon, for grade III infiltrating ductal carcinoma in her left breast. A hormone receptor analysis was mostly negative from a prognostic standpoint. Dr. GS encouraged the patient to get genetic testing to assist her in deciding whether to pursue radiation therapy or surgery. The patient opted for a lumpectomy and afterward underwent aggressive chemotherapy.
In an office some two months after surgery, Dr. GS and the patient again discussed genetic testing, with the patient deciding to undergo BRCA analysis, for which blood was drawn the next day.
A report prepared two weeks later showed the patient had a deleterious mutation in the BRCA1 sequencing. The report noted that “although the exact risk of breast and ovarian cancer conferred by this specific mutation has not been determined, studies in high-risk families indicate that deleterious mutations in BRCA 1 may confer as much as an 87 percent risk of breast cancer and a 44 percent risk of ovarian cancer by age 70 in women.” The report continued that after a first breast cancer, there was a 20 percent risk of a second breast cancer within five years and a ten-fold increased risk of ovarian cancer.
Though Dr. GS initialed the report showing that she received it, the record bears no indication the patient was advised of or received the results. Dr. GS’s later belief was that she spoke to the patient by telephone but that she did not alert the patient to a concern regarding the results. The patient saw Dr. GS twice again that year to remove her Mediport and for a breast check. Two visits the next year included a normal mammogram and no new complaints with regard to the patient’s breasts.
Six years later, Dr. GS learned that her patient had been diagnosed with Stage III ovarian cancer and carcinoma of her right breast. Dr. GS received a report by fax from a genetic testing clinic showing that the patient reported to the clinic that she had an earlier BRCA test performed, which was reported to her as negative.
The patient sued Dr. GS for negligence and claimed that the surgeon failed to properly inform her of the results of her BRCA analysis. Had she learned of the true results, she claimed, she would have had a bilateral mastectomy and bilateral salpingo-oophorectomy.
Dr. GS and the patient resolved the litigation informally.
Physicians typically develop their own custom and practice with regard to advising their patients of significant test results. The legal value of a physician testifying on custom and practice is that if the physician has no reason to believe that he or she diverted from a usual practice with a particular patient, the physician can testify in great detail on the medical advice given to the patient, even if all such details do not appear in the record. But in varying from one’s custom and practice by, for example, reporting important test results over the telephone instead of in a face-to-face meeting, a physician can lose such testimony — while also jeopardizing the delivery of information that an in-person meeting might better afford.
Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.