Countering spurious defenses.

Most medical negligence trials end in verdicts for defendants. A common defense in these cases is that they lack merit. Defendants like to emphasize that unexpected complications or bad results do not necessarily mean bad doctors.

But an equally important explanation for the defense verdicts is the use of spurious defenses to shift blame away from the negligent doctor or hospital. Blame is of,ten attributed to an uncooperative patient who disregarded the physician's orders or to complications that could not have been foreseen or prevented. The doctor is often treated somewhat as an innocent bystander to an unhappy event for which he or she had little or no responsibility.

Cancer Cases

A principal spurious defense in cancer negligence cases is, "What difference would it have made?" The defense attorney will argue that minimal or no damage resulted f,rom the delayed diagnosis of cancer since the ultimate result would have been the same.

Breast cancer. Often a plaintiff, claims, "The physician's failure to make an early diagnosis caused the outcome; an earlier diagnosis would have prevented it."

In a typical breast cancer case, a woman feels a lump or swelling in one breast and goes to her doctor f,or an examination He says it's only a cyst and there's nothing to worry about. He does not recommend a mammogram or biopsy. A year later, when the lump seems to have grown and her confidence in her original doctor is shaken, she goes to another doctor, who, after examination, arranges for a mammogram and a biopsy. After a diagnosis of breast cancer, surgery is performed immediately.

The original doctor's defense is that even if the cancer had been found earlier, the prognosis would have been the same. This defense is spurious. Today's standards for detection of breast cancer require the doctor to perform palpation, then order mammography and a biopsy of the lump. Early diagnosis of breast cancer is essential, and every competent doctor knows this.(1)

Suppose the first doctor, after confirming the presence of a lump, orders a mammogram, which turns out to be negative. He then reassures the patient that she has nothing to worry about. Would his claim that earlier diagnosis wouldn't have made any difference still be spurious? It would indeed. According to statistics, 5 to 10 percent of women with negative mammograms are eventually shown to have cancer.(2) Thus, a biopsy and a mammogram are required, and a doctor who does not order a biopsy can be found negligent.

Guidelines for the early detection of breast cancer include the following:

* For women 20 to 40, a breast examination should be performed at least every three years as part of a regular physical.

* For women 40 to 50, an examination should be performed annually, with a mammogram every two years.

* For women 50 or older, both the breast examination and the mammogram should be performed annually.

Current cancer therapies improve survival significantly. If a woman experiences even short delays in treatment, her chances of survival decline.

The smallest type of breast tumor--a pre-invasive growth known as ductal carcinoma in situ (eaneer "in place")--accounts for more new breast cancer cases than it did only a decade ago. The higher detection rate has been made possible by the increased use of mammography. Tumors found at this stage have not v et invaded other tissues and organs and become life-threatening. However, if the carcinoma is not detected and treated promptly, a significant percentage of patients with the disease will develop life-threatening metastases.

Colon cancer. The defense used in colon eaneer eases is often the same as that used in other cancer cases. Each year an estimated 150,000 Americans are diagnosed with colon cancer, and about 57,000 die. However, many eases are curable if detected early enough.(3) Thus, it is a spurious defense to claim that delay in diagnosis has no effect on the eventual outcome.

In recent years, the fetal occult blood test (FOBT), an inexpensive and uninvasive method of detecting colorectal cancer by examining stool smears, has been extensivel! used to detect tumors in an early stage of development. Many lives have been saved as a result. According to a study reported in the New England Journal of Medicine, this test when performed annually can result in the diagnosis of colon cancer at an early stage and, if its use were more widespread, could prevent as many as one-third of deaths from the disease each year.(4)

If the FOBT is positive, a colonoscopy, permitting a visual examination of the entire colon, should follow. FOBTs may miss cancers (false negatives), and there may be many false alarms (false positives) requiring patients to undergo an unnecessary screening colonoscopy. But a study that followed 46,000 participants for 13 years proved that the test detects enough cancers to save a significant number of lives and that participants in the study who underwent an annual FOBT reduced their risk of dying from colorectal cancer by one-third.(5)

Sigmoidoscopy, a procedure that permits visual examination of the lower part of the colon and the rectum, can also be effective in detecting colorectal cancer or precancerous conditions. Patients who had a sigmoidoscopy were far less likely to die from colon cancer than those who did not. However, this procedure detects tumors only in the lower bowel; FOBT and colonoscopy can detect bleeding from tumors or polyps higher in the bowel.

Prostate cancer. This cancer kills about 35,000 men a year. For some time the principal method of screening had been a digital rectal examination (DRE), and 70 percent of cancers first detected with that method were in an advanced stage.(6) Today, a blood test for detecting this cancer is twice as effective as the DRE The test measures the level of prostate specific antigen (PSA), a protein that seeps out of the prostate gland if a tumor is present or the gland is enlarged. An elevated PSA level can be an early indicator of prostate cancer; 70 percent of prostate tumors are localized when they are diagnosed using this method, which significantly increases the chance for cure.(7)

The PSA test has been endorsed as a routine screening aid by the American Cancer Society and the American Urological Association. Both groups have recommended that beginning at age 50, all men should have both a PSA test and a DRE every year.(8)

Failure to test the patient's PSA level when the disease was in an earlier and more treatable stage should render a "what difference would it have made" defense of a late-diagnosis case clearly spurious.

Ovarian cancer. This same defense is also used in cases involving ovarian cancer. While this disease is relatively uncommon, an estimated 22,000 women, most over 50, were diagnosed with it in 1993. Ovarian cancer is the leading gynecological cause of cancer death, with 13,000 deaths last year. The reason is that this disease is hard to detect in its early and curable stages. However, there is no effective screen for ovarian cancer comparable to a mammogram for early detection of breast cancer. Five-year survival rates arc over 90 percent for those whose cancers are detected before they spread beyond the ovaries or the pelvis.(9)

Formidable as the defense may be that early diagnosis would not have made any difference in these cases, it may be vulnerable when appropriate surgery would have increased the chance of the patient's survival.

New chemotherapy regimens and radiation treatments can boost survival in patients with tumors that have spread from the pelvis into the abdomen and its organs (Stage III disease). The key to providing these women the best treatment is determining just how far the cancer has spread (staging the tumor) and removing as much of it as possible before starting chemotherapy or radiation treatment.(10)

For correct staging of an ovarian tumor, a woman must undergo a total abdominal hysterectomy along with a complete examination of the abdomen during surgery to see if the tumor has spread. Biopsies of abdominal organs must be taken, and staging should be based on the results.(11)

A recent study in the Journal of the American Medical Association found that 28 percent of women with Stage III ovarian cancer who underwent such extensive surgery to diagnose the disease were alive five years later (the standard measure for a cancer "cure"), compared to 21 percent of women who didn't have the surgery. This means that one-third more women with Stage III ovarian cancer lived for at least five more years because they had the surgery. That is significant statistically and certainly significant to women in whom it may make the difference between life and death.(12)

Cardiac Bypass Surgery 

A defense similar to the "what difference would it have made" defense was raised in a case where triple bypass cardiac surgery was performed. The patient was a 40-year-old man with a serious heart condition. After surgery, while the patient was still unconscious, the anesthetist, who apparently had had difficulty inserting the intubation tube before the surgery, repositioned it improperly, and the patient stopped breathing. By the time the anesthetist had corrected the error, the oxygen-deprived patient was comatose. He died a few days later.

The defense claimed the patient would have died from his heart condition anyway in only five more years, and thus there were only limited damages. The patient, the defense claimed, was just living on borrowed time.

What should the plaintiff's response be? First, in this case the patient's wife had accompanied him to the doctor. She heard the reassurances from the doctor that "if this operation is performed correctly, your husband can look forward to a normal life. True, your husband will have to lead a less stressful existence, but, if he does so, there is no reason why he can't live out a full life."

Second, doctors' preliminary medical reports were optimistic in this case. And the operation, according to the surgery report, went without incident or complication. Thus, written evidence would tend to counter any argument that the patient did not have long to live.

Further, the survival rate of five years is not a maximum but only an average, calculated using a variety of patients. The average is based on the histories of many people over 60 who undergo a triple bypass. Older patients are less able to withstand the rigors of this operation than those under 40, who have substantially greater recuperative powers.

When this patient's youth and his otherwise excellent prior health are considered, together with the fact that until the anesthesia error the operation had been successful, it is spurious to talk about average rates of survival. Average is an abstract, a generality. This patient was a young and otherwise healthy human being who had a successful operation except for the anesthetist's error.

Obstetrical Cases

"We saved his life, didn't we?" This defense is often used in obstetrical cases, particularly where the diagnosis is Erb's palsy. This condition in a newborn is sometimes not properly recognized by the parents for months or even years after the baby's delivery.

In these cases, because of damage to the baby's brachial plexus nerve during delivery, one arm and shoulder grow abnormally. The hand man, not fully close, the shoulder may not be fully raised, and the arm is atrophied. The child grows up with a hand and an arm that arc partially useless.

In an Erb's palsy case, the, obstetrician is often accused of not waiting for nature to take its course and propel the baby down the birth canal. The records may indicate that the delivery was not permitted to progress normally although there were no complications to justify accelerating it. The delivery may have been hurried by the inappropriate use of forceps or drugs.

As a result, when the baby's head emerged from the birth canal, the shoulders got stuck and the umbilical cord was compressed (shoulder dystocia). The baby's oxygen supply was diminished or cut off. The doctor realized there was a crisis, hurried to deliver the baby, and used excessive force, compressing or damaging the brachial nerve.

Lawyers may anticipate the defense that the baby's life was in danger, that there was no time to waste, and that the doctor did his or her best in a crisis situation. Indeed, this defense is argued with indignation, as though the lawsuit indicates ingratitude on the part of the plaintiff.

How to answer this defense? First, had proper efforts been made to position the baby so that the narrowest diameter of the baby would emerge at the widest diameter of the birth canal and thus minimize the likelihood of compression? Further, was there no alternative to forceful removal of the baby?

The answer is that there may well have been. Qualified obstetricians can testify that a skillful obstetrician can quickly reposition the baby. There are many maneuvers to relieve shoulder dystocia without damage. Doing the right one should take no longer than doing the wrong one. Failure even to attempt a maneuver can be medical negligence.

A more fundamental reply to the defense, however, may well be that the crisis resulted from the defendant's hasty delivery or the failure to recognize that the baby was large and a cesarean section was necessary. In some cases, the size of the fetus is well above average and may be important in anticipating a problem in delivery. (If the mother has gestational diabetes, the baby is often quite large.)(13) The defendant created the danger and should get no credit for the claimed rescue of the baby during a crisis for which the doctor was responsible.

Anatomical Anomalies

A common spurious defense in surgery cases is that of the so-called anatomical anomaly: A structure is not found where the surgeon expects to find it. The result is that the surgeon damages the structure while performing the operation. One example is the onset of Bell's palsy following a mastoidectomy in which the seventh cranial or facial nerve has been damaged.

The seventh nerve is a motor nerve connected to the muscles that control one side of the face. It also affects the sense of taste. This important nerve runs through a bony channel near the mastoid bone. As a result, surgery to this bone, which may be necessary because of inflammation or disease, brings the surgeon in close proximity to the seventh nerve.

Because of the fine tolerances involved, the surgeon uses a drill under a lens and is acutely aware of how close the nerve is. The surgeon must be careful to avoid compressing or severing the nerve, which would cause the mouth to droop, skin folds to be lost, and eyelids to stay open.

The spurious defense offered by the opposing party is that there was an anomalous nerve path. The nerve wasn't where it was supposed to be, and the unexpected location resulted in an unavoidable error. Thus, the fault was not the surgeon's.

The first answer to this defense is that the surgeon must anticipate these anomalies. Every patient is different. Indeed, surgical texts reveal that most anomalies have been carefully mapped or charted, so the skilled surgeon will be alert to this possibility.

Also, it is not uncommon, as the surgical drill approaches the nerve, that the patient, though unconscious, may react with facial twitching. This warning sign should alert the surgeon that this is a danger zone. Since the surgeon may claim that the anesthetist is responsible for this observation, it may be necessary to join the anesthetist as a defendant in the case.

Finally, even if found otherwise free of fault, the defendant may be held liable for a failure to recognize that damage has been done and to repair it promptly. Once the problem has been recognized, prompt intervention to correct the situation is essential. A compressed nerve can be decompressed. If the seventh nerve is severed, sometimes the nerve endings can be spliced. But these steps need to be taken without delay. The longer the problem remains untreated, the less the likelihood that the patient will improve.

Another spurious defense used in medical negligence cases is that a physician's decision was "a judgment call," that the doctor used his or her best judgment in determining the nature of the disease and was justified in making a particular diagnosis, wrong though it turned out to be.

An example is the case of the patient who appears at the doors of a hospital emergency room running a low fever and complaining of constipation, nausea, and abdominal distress. Blood tests show that the patient has a slightly elevated white blood cell count. A doctor diagnoses the condition as a flu-like malaise, prescribes antibiotics, and discharges the patient.

A day or two later the patient's abdominal pain is intense, his temperature is raging, and he is brought back to the hospital by ambulance. He requires immediate surgery. The condition from which he suffers is a life-threatening burst appendix.

The defense of "judgment call" will not stand up to scrutiny in court. When the patient first came to the hospital emergency room, the symptoms were sufficient for a diagnosis to be made that the patient might be suffering from a life-threatening inflammation of the appendix. He should not have been treated as suffering from a lesser condition. A patient with fever who suffers pain, with nausea or vomiting, and with sensitivity over the right lower abdomen must be considered a potential appendicitis patient.

There is an important two-part caveat on the subject of spurious defenses. On the one hand, what is a spurious defense this year may not be spurious the next. On the other hand, what is not spurious today may be spurious tomorrow. This is because medical advances may involve a significant change in a diagnostic or surgical approach to a particular disease or condition, and this change, if accepted by the medical community, alters the standard of care. This is especially true for various cancers, and changes in the standard of care necessarily have great significance for medical negligence claims.

For this reason, lawyers who handle medical negligence claims must not only be familiar with changes in the law pertaining to their specialty. They must also be aware of significant medical developments that will affect liability, causation, and damages.

ATLA's Professional Negligence Section

ATLA's Professional Negligence Section has approximately 1,100 members who litigate medical negligence claims and cases involving negligence in occupations such as dentistry, psychotherapy, ministry, and accounting. The section provides a means for members to network with others practicing in similar areas of the law and to participate in educational programs and seminars. Section membership also provides an excellent avenue for members to become more directly involved in the association either as section officers or as active members of section committees.

Any ATLA member in good standing who subscribes to the Professional Negligence Law Reporter (PNLR) for $110 is automatically enrolled as a section member. Those who do not wish to subscribe may join the section for $100 in annual dues. New lawyers (those in practice for 10 years or less) may join for $25.

Section members receive a directory of members' names, phone and fax numbers, and addresses, listed alphabetically by, state. The directory is a networking tool that provides members access to the attorneys they need most within ATLA. The section has recently appointed vice-chair Denise Young of Denver to head a committee that will produce a section newsletter. This publication will fill the information gap between the case reports in PNLR and what is happening with issues such as medical malpractice "reform" that affect members in their daily practice.

"The summer meeting is going to be our best ever, and the Professional Negligence Section is going to present a wonderful program," according to section chair James Bartimus of Kansas City, Missouri. The full-day program at the Annual Convention in Chicago on Tuesday, July 26, will include discussions of paramedic negligence, emergency room liability institutional health care provider liability, rehabilitation and vocational counselor liability, professional negligence claims against the U.S. government, and coexisting medical and products liability claims.

For more information or to join the section, call [phone], ext. 432.

Notes

(1) SURGERY OF THE BREAST 1 (Jan O. Strombeck & Francis E. Rosato eds., 1986). (2) Id. at 18-21. (3) Jack S. Mandel et al., Reducing Mortality from Colorectal Cancer by Screening for Fecal Occult Blood, 328 NEW ENG. J. MED. 1365 (1993). (4) Id. at 1368. (5) Id. (6) See William J. Catalona et al., Detection of Organ-Confined Prostate Cancer Is Increased Through Prostate-Specific Antigen-Based Screening, 270 JAMA 948, 952 (1993). (7) Id. (8) Blood Test's Value in Early Prostate Cases, N.Y. TIMES, Aug. 25, 1993, at Cl. (9) Roger Hand et al., Staging Procedures, Clinical Management, and Survival Outcome for Ovarian Carcinoma, 269 JAMA 1119 (1993). (10) See id. (11) Id. (12) Id. at 1121. (13) See Donald R. Coustan, Diabetes in Pregnancy, in 1 NEONATAL-PERINATAL MEDICINE 199-203 (Avroy, A. Faranoff & Richard J. Martin eds., 1992).