Would You File a Malpractice Suit?

Let’s say your father died at the age of 66, exactly five months after being diagnosed with kidney cancer that had already metastasized.

And say that for the 12 months before the diagnosis he’d been to his doctor repeatedly to complain of symptoms that were very typical of cancer. Including blood in the urine and severe pain. And say your father had good insurance, you know that plenty of tests were performed, but (to the best of your knowledge) his doctor didn’t suppose it was cancer and didn’t recommend looking into the possibility. So instead your father just suffered for a year, becoming more and more dependent on pain medication instead of receiving timely treatment. Until he became sick enough that another problem was diagnosed, resulting in surgery, and viola - when they opened him up, they found the cancer right there.

Do you look into this, try to find out what transpired between your father and his physician? Do you investigate to find out why the correct diagnosis wasn’t given and whether it would’ve helped?

Do you file a lawsuit if you discover that your father’s physician basically ignored his symptoms and the tests and didn’t diagnose him correctly, resulting in a year of suffering and death that might’ve been prevented?

Or ---- do you figure that money won’t bring your father back and just let it go?

I think your last option is the most logical one.

I can understand wanting to sue. I can understand wanting to protect others from a physician that is potentially dangerous to consult.

However, malpractice suits are extremely difficult to conduct, and nearly impossible to win. They cost a lot, and finding witnesses with the right amount of credibility is practically impossible. One would think that there would be an “honest” doctor who would be the type to want to get a “bad doctor” (who may well be giving the rest of them a bad name) out of there, but this phenomenon is rare. If anything, professionals of this type usually close ranks whenever one of their number is attacked, no matter how hopeless a practitioner he is.

All you’re going to do in a situation like this is make some lawyer rich and frustrate yourself for probably a number of years.

You can file a complaint with the state medical board and they will look into the case. That does not cost anything and no lawyer is needed. I think in most cases 1 complaint does not mean a lot but if the Dr. has a pattern then he could lose his license.

This sounds a lot like asking for legal advice.

Pfffff. No - it’s a moral issue. It’s an ethical issue. Details are necessary in order to tell the story, but the point is, are there circumstances under which vindictiveness is the better choice?

I agree with In Winnipeg and Bijou Drains, but am willing to be dissuaded.

I really like Bijou Drains’ point about filing a complaining with the licensing agency. That seems appropriate.

I like Bijou’s point also. Let the medical board decide if this is significant or not.

Another thing, this is entirely anectdotal, but the folks I’ve known with kidney cancer have not been able to beat it. So knowing about it 12 months earlier might not have made any difference.

More likely to make some lawyer poor, not rich, if you can find one to take it at all. Med mal cases are usually on contingency, and the lawyer is out all the costs that he fronted for the case if he loses.

Not really giving advice, just sharing my thoughts based on a personal experience. You’ll notice that I have few posts here, but this particular topic strikes a nerve with me for reasons that will be obvious.

My father lived for over 11 years after his initial diagnosis of renal cell carcinoma, at which time there was no evidence that it was anywhere other than his right kidney. In fact, all of his scans came back clean for five years after his surgery, and he was pronounced “cured.” Almost five years later, he had a cerebral hemorrhage that turned out to be due to metastatic cancer. Until that day, we had no idea that the cancer hadn’t been completely eliminated (i.e., he’d had no readily apparent symptoms). He lived for almost exactly 16 months after that.

His initial diagnosis was serendipitous, as it turned out that the symptoms that led to it weren’t even related to the cancer. Had it not been detected as early as it was, we would have lost him years earlier than we did. So while in the grand scheme of things, the cancer killed him, he did “beat it” for quite some time. With that said, my understanding is that his case was not typical, that this type of cancer is usually much more aggressive. In the case described in the OP, a diagnosis made 12 months earlier might not have made much of a difference. But then again, it might have. Medicine is only partly science, and doctors aren’t God. My father was a doctor—and so are many of his friends—and he would have been the first to tell you that. He had the best care available at the time. He died anyway, despite everyone’s best efforts.

At least three times during the terminal phase of his illness, he nearly died for reasons that were related to the cancer, but not directly because of it. At least one of them was a theoretically “preventable” condition that could easily have been overlooked until it was too late, had the family member caring for him not noticed and reported the symptoms. At the time of his cerebral hemorrhage, both he and the family member realized—in retrospect—that for a few weeks or months, he had been exhibiting very subtle neurological signs that neither of them had interpreted as being significant.

It’s never wrong to ask questions. For obvious reasons, it can be very stressful (and even threatening) for the doctors involved—even when they know they’ve done their best—because they’re human and can make mistakes, because many of their choices can have life-or-death consequences, and because their decisions can always be second-guessed. The good ones second-guess themselves. There are of course exceptions, but in my experience, most doctors care about the people who have entrusted their lives to them, and do the best they can to care for them with the information and resources that are available to them. This may or may not have been the case in the OP’s situation. Sometimes doctors miss things, even when they’re doing their best. And sometimes the things that they miss are things that can only be seen in retrospect, when the outcome is already known. It’s important when you play the “what if” game (and believe me, I have!) to keep in mind that the final outcome was the end result of a multitude of decisions—some big, some small—on the part of the doctor(s), the patient, and all those involved in supporting and caring for the patient. And that whatever the answers are, they won’t bring him back.

I’m sorry, fessie.

Fessie - I’m very sorry for your loss.

I’m sure the frustration of it makes you think not everything was done that could have been, but short of suspecting the doctor had something personal against your father, or there was some other mitigating factor, I would let it go. The truth is, few diagnoses are 100% and I’m sure there were lots of other things his condition could have been.

No. My husband died of renal cell cancer, too, so talk about weird coincidences. We had access to a MRI done a year before his diagnosis that showed something that was dismissed as a cyst on his kidney at the time of the MRI. It might have been the beginning of the cancer, but at the time, he had no symptoms–the MRI was for something unrelated. I debated trying to see if there was the possibility of a case for about 5 seconds, which was long enough to realize that it wouldn’t help things, no matter what the outcome, and could result in me being even more bitter and distraught than I was.

No it’s not. It’s more asking if some kind of investigation is warranted because the incorrect diagnosis sounds unusual. It’s more a question of “Is this something we should look into?” And I’m really sorry for Fessie’s loss.

Bijou Drains’s recommendation was spot on. For many professions there is a regulatory body that exists to deal with professional regulatory issues and misconduct or malpractice complaints. It’s part of the accountability process. Not every report or complaint results in an investigation, often none is needed. If there is a series of complaints, it may result disciplinary or incapacity proceedings, but that is unusual. In addition to the regulatory body, the hospital should have an ombusperson who deal with questions/complaints regarding patient care. IME, they tend to be very biased toward “the hospital is not at all in anyway for sure not responsible for this person’s death/amputation/missing organ” and may not answer questions directly for fear of accidentally admitting liability.

Edit: Full disclosure, I’ve also been toying with the idea of making a complaint about a walk-in clinic doctor who did not follow established protocol and, as a result in a delay of treatment, may have been a contributing factor in what appears to be some permanent hearing loss. I’m aiming to send my complaint to the manager of operations of the clinic though. I’m also thanking Og that I had the presence of mind to get a second opinion before I lost even more hearing.

Very insightful. Thanks for sharing your experience.

(I wouldn’t sue either.)

No. Not only will it not bring your dad back, but if it ever makes it to a trial, it won’t be immediate. A trial will only cause a setback to whatever healing you’ve managed to do in the meantime. And you may not win.

Ethically speaking, remember that doctors aren’t gods, medicine isn’t an exact science, and hindsight is 20/20. Just because he had common symptoms of cancer didn’t mean that the same symptoms aren’t shared by many, many conditions that are far less nefarious and far more likely. Only about 20,000 men in the US are diagnosed with renal cancer each year. That is a very low probability. So it wouldn’t be at all unusual for a “good” doctor to have someone come in with, say, stomach pains and painful urination, and not run a cancer screen (assuming there is a cancer screen for renal cancer) until several months, and failed diagnoses, have passed.

In other words, a doctor can miss cancer for several months and still not be guilty of malpractice, especially with cancers that don’t have obvious red flags (e.g. a lump) and/or whose symptoms mimic other diseases. It doesn’t make it any less tragic for you, but there it is.

Also, and this may not be easy to hear right now, but if your father was a smoker/drinker/overeater, the very real fact is that he probably contributed far more to his own demise than the doctor who missed it in the beginning. Smoking and obesity are linked to more than 30% of all non-skin cancers.

In any event, I’m so sorry to hear about your father (FIL’s?) passing. Cancer sucks in any form.

Treymoon’s and Brynda’s posts both bring up very good points about this. For complete disclosure, my father has been treated for 7 years now for Mantle Cell Non-Hodgkin’s Lymphoma, which is not a common cancer. The average survival is 5 years for MCL. I am also a research technologist, with some background in cancer studies and laboratory medicine. I am also waiting for the day when he says “Enough is enough. I’m done.”

That said, one has to be very careful about pursuing malfeasance. It bothers me to no end to see the Komen Foundation (now Komen for the Cure - even worse) and others fighting for a cure, because that kind if goal is misleading. Yes, there are specific cases and cancers that we can now cure. Yes, present research will lead to some cures in the future, but there are some that can’t be cured because of the aggressive nature of that cancer, the stage it was at when discovered and the resilience of the cancer cells (keep in mind cancer cells are normal cells that have accumulated mutations that make them malignant and continue to mutate, permitting evasion of anti-cancer therapy). Given the marketing push to find a cure, it is understandable that people assume death from cancer = malpractice. This is unfortunate, because oncologists can only treat what is in front of them, not achieve a theoretical cure every time. The family might say “You didn’t cure a treatable disease,” to which the physician might respond “You didn’t bring me a perfect, textbook case.”

If this isn’t complicated enough, there is the patient-physician relationship to consider. Some patients are savvy enough to know that the physician is falling short and will seek a second opinion. Others will follow the cultural respect for experience and not question the physician and not act on the inexperience or neglect of the physician. A third group will assume that the physician is wrong all the time, and will waste time and money seeking a needless second, third or fourth opinion. When all of this is put together, deciding what to treat and how can become complex, thus figuring out what went wrong and when can be very difficult. An inquiry could uncover malpractice or it could never find the answer because of the nature of the patient-physician relationship, both at considerable monetary and emotional cost. Of all the possible outcomes of an inquiry, what will you do with the results? Will they bring you peace of mind or will they fester and ferment? Is there justice to be found in this case, or is it the result of many decisions, right or wrong?

Ok, I think it would be a good idea to talk to a very good med mal attorney. (i.e., usually not the ones with the big ads in the phone book). He or she could advise you about the strength of the case, the possible outcomes, the hassle factor, and any other questions you have. At the end of the day you can still file a lawsuit or not, but you’ll have more facts on which to base your decision.

Two big questions in my mind: 1) whether the doctor missed something that a reasonably competent doctor would have found (there are standard procedures–no one is expecting a doctor to be a god or to be perfect, but some actions fall way below the established standard of care)

  1. Would a prompt diagnosis have made a significant difference. There are studies on this and people can find those kinds of answers. A good lawyer will honestly tell you if your chances of prevailing are not good. (no lawyer wants to spend time and money on a case with an unlikely chance of prevailing).

As some of you know, I’m a lawyer (so take this for what it’s worth. I don’t, however, do med mal cases.) Doctors have insurance for a reason, and if they screw up, they expect a claim will be made. If you hurt or kill someone by accident with your car, you would expect, and want, your insurance to pay for your negligence. I have great respect for doctors, but some doctors make terrible mistakes. Sometimes it’s one of the “good” ones, more often, it is one of the small number of repeat offenders.

I’m a fan of not suing over everything (heck, I didn’t sue the woman who hit my seven year old with her car) But I don’t think there is anything wrong with finding out what happened in this case, and then deciding. The money won’t bring your father back, that’s true. *If *it turns out a mistake was made here, the lawsuit could make this doctor and other doctors more careful in the future. If no malpractice occurred, you can at least gain some solace from knowing your father didn’t die because of some medical mistake.

Just my 2¢:

My mother was admitted to the hospital with breathing problems They did all kinds of tests and scans to check her out, knowing she was a high risk for lung cancer. Bottom line: She had had an allergic reaction to an antiobiotic she had been given to treat a throat infection, causing lots of internal swelling. Once that cleared up, she was discharged, and that was the end of that.

A year later, she was admitted once again with breathing problems. This time it was the big C. Nine days later she was dead. We were told that her case was the topic of the weekly hospital staff meeting, and that as part of the meeting all her diagnostic information from a year earlier was brought up and presented to see whether or not anything had been missed in the diagnosis. Their conclusion was that while they couldn’t rule out the possibility of cancerous cells having been present a year earlier, there was nothing in the examination to indicate there was. Maybe there was, and maybe not, but that was good enough for our family.

Sorry for your loss.

Unless somebody said, “it might be cancer” and the doctor pooh-poohed the idea, no.

This is why contacting the regulatory body makes more sense. The nature of the investigation is different and the ultimate goal is more about public safety than punishment. They are in a much better position to evaluate the medical documentation to determine if it was negligence, human error, or just bad luck.

If you feel you were wronged you should get a lawyer. Face it a medical board isn’t going to do much unless it’s VERY gross negligence. The boards are peers and they are very reluctant to admit one of their own was in error. The police do not police “the police” so to speak :slight_smile:

Most lawyers have a free consultation. Find one and get that free consultation. Then make the decision. If you’re looking for cash, you won’t get much, but if you get a bit and feel it’s blood money, then donate what you get to a cancer society.

Wow, thank you for all your replies.

Traymoon, I thought about your post all evening. Your prose is so pleasant to read. Thanks, and I’m so sorry for your loss.

Wow, Earl, that’s kind of what this case feels like. And I’m so sorry for what you and your family experienced. Nine days, criminy.

Brynda, geez, what a coincidence.

Vlad/Igor, I’ve thought that, too, re: “beating cancer.” As though it were a mugger in the parking garage.

PunditLisa thank you, I’m sure you’re right about him contributing to his own demise. It’s true, I do tend to think of doctors as Possessing All Power, when clearly they don’t.

Thanks ENugent and NinetyWt and Yarster and Eats Crayons and Markxxx and Procrustus.