Case Study: A Delay in Diagnosis and “Admission Against Interest” Results in an Early Settlement

Facts of the Case

A 46-year-old male was referred by his primary care physician to an otolaryngologist (ENT). The patient was initially seen on November 15, 2006. He had a history of prior sinus surgery by another ENT in 2003. He also had GERD and had smoked for many years. The patient’s current complaints were headaches, facial pain, dysphagia and severe throat pain. Upon examination, the ENT observed nasal polyps, edema of the mucosa and redness of the larynx. He prescribed antibiotics and scheduled a follow-up visit.

On November 29, 2006, the patient returned to his office. He reported some improvement in his symptoms but continued to complain of dysphagia and throat pain. Upon examination, his larynx was still red and swollen. The ENT diagnosed esophagitis and possible GERD at this visit. He ordered an esophagram and prescribed Nexium for the patient.

The radiologist interpreted the esophagram, which showed a right-sided hypopharyngeal diverticulum and thickened gastric folds. However, he could not exclude an infiltrating neoplasm, such as a lymphoma, and recommended clinical correlation in his report.

Three days later, the patient returned complaining of severe facial pain from his cheek to his eye. An examination revealed nasal polyps, which were blocking the patient’s sinuses. The ENT ordered further radiologic studies at this visit.

On December 28, 2006, the patient underwent a CT scan of his sinuses. A different radiologist interpreted the scan as polyps blocking the right maxillary sinus. Four days later, the ENT physician discussed with the patient performing surgical intervention to remove the blockage. On January 4, 2007, he performed endoscopic surgery to remove the polyps.

On January 10, 2007, the patient presented for his first post-operative visit. He reported some improvement in his symptoms. However, six weeks later, he returned to the ENT physician complaining of a severe sore throat, with pain radiating from his left ear for the past eight days. The ENT diagnosed pharyngitis with possible swollen lymph tissue and a possible mass. He prescribed steroids and antibiotics. One week later, the patient’s symptoms had improved. However, during an endoscopic examination at that visit, the ENT physician visualized two almond-sized masses. Despite another week of steroids, the masses did not diminish in size. Therefore, he ordered an MRI.

On March 21, 2007, the patient underwent an MRI. This test confirmed the presence of a left oropharyngeal mass extending from the left hypopharynx to the left pyriform fossa. The radiologist stated in his report that a malignancy should be excluded and telephoned the ENT physician with his findings.

On April 4, 2007, the ENT biopsied the masses. The pathology results revealed stage IV moderately to poorly differentiated squamous cell carcinoma. Between April 2007 and May 2008, the patient underwent chemotherapy, radiation, insertion of a PEG tube due to his weight loss and a left neck dissection. Despite this, the malignancy recurred, resulting in an additional left neck dissection and pectoralis major flap reconstruction. On July 18, 2008, he was diagnosed with recurrent squamous cell carcinoma. He was scheduled for additional chemotherapy, but further surgery was not recommended.

The Lawsuit

The patient then commenced a lawsuit against both the otolaryngologist and the radiologist, their corporation and the hospital at which they practiced. He alleged that there had been an unreasonable delay in the diagnosis of oropharyngeal cancer despite his complaints of severe facial pain, throat pain and difficulty swallowing for more than five months. He claimed the delay caused metastasis beyond his oropharynx and into the hypopharynx. This resulted in extensive surgical intervention and a decreased life expectancy. On March 23, 2009, the patient died. His estate added an action for wrongful death to the existing lawsuit.

Expert Reviews

Experts in both otolaryngology and radiology reviewed this case. The ENT experts concluded that the otolaryngologist’s care could not be defended. The patient’s complaints had clearly warranted earlier, more definitive diagnostic and radiological testing. Further, with his history as a smoker, the nature of his symptoms and the fact that he continued to complain that he obtained little to no relief from the prescribed treatment, the ENT should have strongly suspected a malignancy within the first few visits. These experts opined that the cancer was most likely present in November of 2006 and probably could have been easily visualized if the ENT had used a flexible laryngoscope to examine his throat.

Further, the patient’s symptoms were far too severe to justify the initial diagnosis of nasal polyps. An immediate biopsy should have been performed. A second ENT expert stated that if the diagnosis had first been made in November 2006, the patient would not have needed chemotherapy and radiation, only surgery. Further, he opined that the patient may have required less invasive surgery than he endured and would have had a more positive response to the treatment, with a concomitantly longer life expectancy. Therefore, the reviewer felt there were serious departures from the standard of care.

The ENT’s deposition admission against interest further hampered the defense of this case. He admitted that the cancer most likely existed before his initial examination of the patient and acknowledged that if the patient had been diagnosed and treated earlier, a better outcome was likely.

Settlement

Because MLMIC was unable to find an expert who was willing to defend his care and because of the otolaryngologist’s admissions at his deposition, the case was settled only on behalf of the otolaryngologist. However, the fact that the patient’s cancer had most likely metastasized prior to his initial visit to the ENT aided the settlement negotiations. The case was ultimately settled on behalf of only the ENT for $750,000.

Legal Analysis

One of the key risk management issues in this case was the failure of the ENT to pay attention to the patient’s history of smoking for many years and recognize the clear distinction between the symptoms he exhibited in 2003 and his current symptoms. He reported the symptoms were extreme and the pain was unlike anything he had ever experienced. Suppose the patient’s history had been related by the ENT to the patient’s present complaints, which did not resolve after the initial treatment. In that case, he might have been led to perform more definitive testing to rule out cancer within the first few visits. Therefore, from a risk management perspective, his failure to both link and document the link between past important “social history/behavior,” which is associated with serious risks of disease with the patient’s current symptoms, created a problem for defending the ENT.

There was no documentation of how long the patient’s symptoms had been present prior to the initial consultation with the ENT. Because he had not documented this history, at his deposition he could not recall how long the patient had been symptomatic prior to the first consultation. This enabled the patient to claim that these were new symptoms that the ENT failed to properly diagnose.

Another risk management issue involved the diagnostic testing performed. The first radiologist who performed the esophagram stated in his interpretation that he could not exclude a neoplasm. Although he recommended “clinical correlation,” he should have telephoned the ENT about this finding. The term “clinical correlation recommended” is very frequently used in reports of imaging studies, and unless a physician receives a call because there is suspicion of a neoplasm, the significance of this term is often missed or ignored. A call from the radiologist potentially could have saved the patient’s life or mitigated his injuries. However, there was no documentation of such a call. Because of this, the patient was not diagnosed until after multiple visits with the ENT over several months. Therefore, through the application of the “loss of chance” doctrine, the patient claimed that the delay in diagnosis directly led to metastasis and resulted in greater disfigurement, pain and suffering and a higher risk of death. If this case had gone to trial, this delay in diagnosis and treatment would have been used to justify the damages sought.

From a legal perspective, the ENT compromised his defense by making “admissions against interest” at his deposition by acknowledging that the cancer likely pre-existed his examination of the patient and, if diagnosed sooner, the outcome could have been altered. An admission against interest is defined as an admission of the truth of a key fact in dispute by a party when that statement is embarrassing, incriminating or harmful to that person’s pecuniary or personal interests. The statement is then allowed into evidence at trial because the person making the admission had no incentive to make such a damaging statement. This proves that the statement is reliable. Further, when such an admission is made at a deposition, it is made under oath. Thus, it is very difficult to explain such an admission away at trial.

Finally, all the experts who reviewed this case felt the ENT’s care was not defensible. From a legal perspective, if the defense is unable to retain an expert who can effectively defend the care provided and state that the standard of care was met, the need to settle the case becomes more imperative.

MLMIC policyholders can reach our healthcare attorneys for questions regarding documentation, “admission against interest” or the Loss of Chance Doctrine by calling (800)-275-6564 Monday-Friday, 8 a.m. – 6 p.m. or by email here.

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This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.