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Expert’s Statements On Causation Conclusory In Failure To Diagnose Cancer Case


A man presented to an outpatient family physician with low back pain that began approximately two weeks prior to the visit. The outpatient family physician ordered radiographic imaging, an MRI, various lab tests, and prescribed Lortab for his pain symptoms. His lab tests showed an elevated sed rate of 30 (normal is 0–15), elevated BUN at 27, and also elevated creatinine and calcium levels.

 

The man’s pain worsened and he returned to the outpatient family physician’s practice group five days later with complaints of increased back pain and fever. He had lost eleven pounds in the five days since his previous visit. Further lab tests were conducted that showed an elevated sed rate at 88, elevated BUN at 46, elevated creatinine at 1.91, and an elevated B/C ratio of 24.1, as well as again, an elevated calcium level.

 

The man was admitted to the hospital under the care of an inpatient family physician. While at the hospital, he experienced low white blood cell and platelet counts, as well as elevated BUN, carbon dioxide, and calcium levels. The inpatient family physician documented suspicions of cancer and metastatic disease and ordered a bone scan. The scan was read as being negative for metastatic lesions. Six days later the man was discharged with diagnoses of acute low back pain, pancreatic lesion, acute renal sufficiency, hypercalcemia, and hypertension.

 

Nineteen days after his initial visit the man saw the outpatient family physician for increased back pain. The outpatient family physician diagnosed him with low back pain and gout, and prescribed steroids. Four days later, at a follow up visit, the outpatient family physician again diagnosed him with gout. Twenty-nine days after his initial visit, the outpatient family physician ordered a basic metabolic panel, which showed abnormal results for BUN, creatinine, B/C ratio, eGFR, chloride, carbon dioxide, anion gap, and calcium levels. Forty-two days after his initial visit, he saw the outpatient family physician again. He had lost forty-three pounds from his initial visit. Lab tests from this visit showed abnormal results for platelets and white blood cell count, and an elevated calcium level. The outpatient family physician did not review these results until over two months later because his staff did not provide him with the results until then. The outpatient family physician referred the man to a chronic pain specialist, and ordered him to follow up in one week.

 

Six days after his last appointment with the outpatient family physician, the man was admitted to a medical center with a diagnosis of small cell lung carcinoma. His oncologist noted a large mass on his upper right lung lobe, and found that the bone scan conducted upon his admission to the hospital 41 days earlier was positive for metastatic disease. The oncologist also documented that the man was symptomatic of cancer due to his significant weight loss and elevated levels of calcium. He began cancer treatment, but died a week after he was admitted to the hospital.

 

His wife filed suit against the outpatient family physician, inpatient family physician, and their respective practice groups for medical negligence for failure to timely diagnose her husband’s cancer and failure to refer her husband to an oncologist. She timely tendered the expert report of a doctor. The outpatient family physician, inpatient family physician, and their respective practice groups objected to the report, alleging that it failed to satisfy the expert report requirements of Texas Civil Practice and Remedies Code Section 74.351, and moved to dismiss the suit. The 392nd Judicial District Court, Henderson County, overruled their objections to the expert report and denied their motion to dismiss.

 

The Court of Appeals of Texas, Tyler, reversed and remanded. The court held that the medical expert’s statements on causation were conclusory, lacked sufficient detail, and required the court to make inferences to conclude the claim had merit; and the expert’s report failed to establish some causal connection between the outpatient family physician’s, inpatient family physician’s, and their respective practice groups' conduct and the harm the man suffered.

 

The medical expert’s statements on causation were conclusory, lacked sufficient detail, and required the court to make inferences to conclude the claim had merit. The court held that an expert report must both inform the defendant of the specific conduct that the plaintiff has called into question and allow the trial court to conclude that the claim has merit. A report that merely stated the expert's conclusions about the standard of care, breach, and causation did not provide the necessary information to fulfill the dual purposes. Rather, the expert must explain the basis of his statements to link his conclusions to the facts. The medical expert’s opinion on causation was that had either the outpatient family physician or the inpatient family physician timely diagnosed the man with cancer or referred him to an oncologist, he would have obtained the appropriate pain treatment. Consequently, his report continues, the man would have foregone unnecessary pain and suffering due to the delay. The medical expert's support for causation was that cancer pain medications are different than gout pain medications, back pain medications, and medications for chronic pain. However, the medical expert did not identify the medications that should have been prescribed, explain how they were different than other pain medications, describe how those medications would have been more effective in eliminating the man's pain, or explain how an oncologist would have been more qualified to provide the correct prescriptions than the outpatient family physician, the inpatient family physician, or the chronic pain specialist. The court noted that this information was critical, especially since the category of damages the wife sought arose from the man's pain and suffering, and he had already been prescribed at least one pain medication. Consequently, the medical expert's statements on causation were conclusory, lacked sufficient detail, and required the court to make inferences to conclude the claim had merit. The court concluded that without that information, the court could not conclude that the claim was meritorious.

 

The expert’s report failed to establish some causal connection between the outpatient family physician’s, inpatient family physician’s, and their respective practice groups' conduct and the harm the man suffered. Irrespective of whether either family physician would have timely diagnosed his cancer or referred him to an oncologist, the expert report did not identify the course of treatment that the family physicians or an oncologist should have provided, and he did not explain how that treatment would have led to a different outcome—eliminating the man’s unnecessary pain and suffering. The court concluded that the wife failed to establish that the family physicians' failure to timely diagnose his condition, refer him to an oncologist, or provide appropriate pain treatment caused him to undergo unnecessary pain and suffering.

 

The deficient expert report also defeated the wife’s claim against the outpatient family physician’s practice group and the inpatient family physician’s practice group. The wife argued that the staff at the outpatient family physician’s practice group failed to immediately notify the outpatient family physician of the lab results from the lab tests conducted at her husband’s last visit. Because he started receiving “appropriate treatment” six days after these lab tests, her argument continued, this delay caused six days of unnecessary pain and suffering. The medical expert’s report did not offer any explanation of what the adequate treatment would have entailed, or how this treatment would have differed from the pain medication that the man received. The court concluded that the medical expert only provided an unsupported conclusion that such treatment would have resulted in six fewer days of unnecessary pain had these critical lab results been immediately communicated to the outpatient family physician. The medical expert’s report was devoid of any allegation that the inpatient family physician’s practice group breached an independent duty or caused any harm to the man to support a direct liability claim. To the extent that the claims against the outpatient family physician’s practice group and the inpatient family physician’s practice group were vicarious in nature based on the employment or agency status of the outpatient family physician and the inpatient family physician, the report failed to establish causation against either family physician. The court concluded that the trial court did not err in sustaining the practice groups’ objections.

 

The Court of Appeals of Texas, Tyler, reversed the trial court’s order overruling the outpatient family physician’s, inpatient family physician’s, and their respective practice groups’ objections and denying their motions to dismiss, and remanded for a determination of whether the wife should be afforded the opportunity to amend her expert report.

 

See: Carney v. Holder, 2014 WL 3939915 (Tex.App.-Tyler, August 13, 2014) (not designated for publication).

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

See also Medical Law Perspectives, March 2014 Report: Blood Draws, Testing, Transfusions: Venipuncture Injury, Inaccurate Results, Tainted Blood - The Liability Risks

 

See also Medical Law Perspectives, January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

 

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