A Test Case

by Ann S. Lofsky, M.D., Board of Governors

In complex medical cases, it is not uncommon for numerous physicians to be involved in a single patient’s care. This sets the stage for things to fall between the cracks, as each physician focuses primarily on his or her area of expertise. Specialty consultants may assume that basic medical care and diagnostic tests have been handled by someone else, but, as the following illustration shows, that is not always the case.

A 35-year-old Florida man questioned his orthopedist regarding a solid lump in his axilla. He was treated with antibiotics for a possible infected cyst. It decreased in size but did not resolve. He was referred back to his primary care practitioner, who sent him to a general surgeon for an incisional biopsy. This was performed, and the pathology was consistent with B-cell lymphoma. Bone scans and CT scans confirmed it to be Stage IV.

The patient was sent to an oncologist for further treatment. He was started on a conventional chemotherapeutic regimen, which included steroids. Six months into his treatment, the man was hospitalized with Pneumocystis pneumonia. This was successfully treated with the help of an infectious disease consultant, but two months later, the patient began to develop visual problems. An ophthalmologist diagnosed progressive outer retinal necrosis, which is untreatable and irreversible. The patient soon became completely blind.

How Could the Oncologist or Infectious Disease Specialist Be Liable for This Unusual Complication?

Because of the high incidence of progressive outer retinal necrosis in AIDS patients, the ophthalmologist ordered an HIV test, which returned positive. The patient filed suit, alleging that numerous physicians had negligently failed to question him about the risk factors for HIV and had failed to order an HIV blood test prior to beginning his chemotherapy, resulting in his permanent blindness.

The oncologist claimed that he had suggested an HIV test to the patient on the first office visit, but the man stated that he had recently been tested and was negative. The infectious disease consultant stated that he had relied on the oncologist’s assurances to him that the patient was HIV negative in formulating his own treatment plan.

What Is the Applicable Standard of Care?

The plaintiff’s experts were critical of the oncologist and the infectious disease physician for not obtaining a thorough social history from this patient and for not suspecting HIV infection when the patient was hospitalized for Pneumocystis carinii pneumonia. The oncologist claimed that this pneumonia is a not-uncommon complication of the prednisone regimen, and that there was no reason to assume that it was anything other than steroid immunosuppression. The plaintiff’s expert oncologists countered that conventional chemotherapy for uncomplicated non-Hodgkin’s lymphoma virtually never results in Pneumocystis infections, necessitating consideration of further differential diagnoses.

An infectious disease expert stated that the oncologist definitely should have obtained an HIV test before starting chemotherapy, arguing that the diagnosis of B-cell lymphoma alone should have alerted the physicians to the possibility of HIV infection. The expert felt that performing a full social history at any time would likely have elicited risk factors and mandated earlier testing.

A defense oncologist felt that the standard of care does not include mandatory HIV testing for all cancer patients. The defense’s infectious disease expert agreed with the oncologist that Pneumocystis pneumonia can develop in all immunocompromised patients regardless of their HIV status and would not necessarily imply infection. This expert agreed, additionally, that it was reasonable for the infectious disease physician to have relied on the oncologist’s verbal assurance that the patient had tested negative for HIV.

The oncologist’s argument was that he questioned this patient about HIV and its risk factors, but he did not document it completely in his medical records out of concern for the adverse social consequences it might have. He stated that on initial presentation, the patient told him he had been tested for HIV within the last two years and that he was negative, but the physician never personally saw any test results. He had suggested a repeat test and had given the patient the paperwork for this, but he did not draw blood and did not know if the patient had followed up on his recommendation. Two separate requests for the patient to obtain an HIV test were documented in the oncologist’s medical records, but the oncologist stated that he recalled bringing it up with the patient on at least four different occasions.

Would It Have Made Any Difference in the Outcome If the Test Had Been Sent?

The plaintiffs alleged that if the patient’s HIV status were known earlier, antiretroviral therapy would have been started, sparing the patient advancing retinal necrosis and blindness. The plaintiff’s expert ophthalmologist felt that this complication usually comes on very suddenly, so that even if antivirals were started as late as the Pneumocystis infection, the complication might have been avoided and the patient’s vision spared. A defense ophthalmologist disagreed, stating that even if HIV or AIDS were diagnosed at the same time as the lymphoma, it would not have altered the development of the retinal necrosis, and this man would eventually still have become blind.

Should This Case Be Tried?

Because the oncologist made a good impression on his behalf and wished to defend his own care, this case was scheduled for trial. Under questioning, the oncologist conceded that had an HIV test been obtained, he would have started antiviral medications, and he personally believed that the eyesight might have been spared. He stated additionally that this patient was completely cured of the lymphoma, but he would be permanently disabled due to the blindness.

The potential jury verdict in this case was estimated to be in the millions due to the patient’s lost earning potential, and it was felt that there would be considerable jury sympathy for the man. With the oncologist’s consent, the decision was made to settle this case for his policy limits. Trial proceeded against the infectious disease physician, who received a defense verdict.

A common theme reiterated by several experts in this case was that whenever a patient develops a symptom or disease, there is often a differential diagnosis of possible causes. While it is not necessary to test for every single one, their priority must be constantly reevaluated in light of new developments. Once this patient developed Pneumocystis pneumonia, the diagnosis of HIV became much more likely, and a test should have been done at that point to rule it out as a possibility, even though other explanations existed. Similar arguments are seen in many malpractice cases alleging failure to diagnose.