Sunday, February 13, 2005

Sued for Proper Care

Garden statueA recent brief AP wire story highlights the adversarial and often irrational legal environment in which physicians practice today. The article, Man sues over botched testicular surgery (hat tip: Kevin, M.D.), is very brief, and it is obviously not possible to determine the validity of such a suit based on a such a brief press release or wire story.

One wonders why such a story is newsworthy at all -- but the headline gives us all the clues: there's been a medical screw-up, and it involves a sexual organ. Titillating stuff indeed -- far more interesting to readers than, say, a story about a CNN executive claiming that U.S. troops were assassinating journalists. Problem is, I strongly suspect the physician here is being sued for providing good, appropriate care.

Here's the brief description of the case:
Danny Curtis claims the surgeon at Kern Medical Center did not conduct a biopsy before arranging urgent surgery to remove a testicular tumor in July 2004, according to the lawsuit filed in Kern County Superior Court.

Doctors later discovered that the tumor was not malignant and did not need to be removed, according to court documents.

Testicular cancer is a rare but very aggressive malignancy, typically affecting men between the ages of 18-35 years of age. It usually presents as a painless lump or swelling in the testes itself, and not infrequently is ignored by the patient or misdiagnosed by physicians as a benign infection called epididymitis. The tumor may grow rapidly and spreads by the blood stream or lymph system. Patients may present with huge metastatic tumor masses in the abdomen, chest, liver or brain. This was how Lance Armstrong -- perhaps one of the most famous testes cancer patients -- presented. Although aggressive chemotherapy has made huge advances in successful treatment of such often-lethal cancers in the past decade, testicular cancer remains a killer of otherwise healthy young men.

The diagnosis is suspected in most cases by physicial examination and ultrasound. A solid growth in the testes itself -- as opposed to the structures adjacent to it -- has an extremely high risk of being malignant - about 95-97% in most studies. While biopsy prior to removal would appear to be logical and prudent, it is in fact a very risky proposition.

When the cancer is entirely confined to the testes, it is curable by simply removing the testes and the accompanying spermatic cord surgically. Biopsy violates the natural barrier confining the cancer to the testes, and risks spilling cancer cells into the surrounding tissues or the blood stream. Once this occurs, far more drastic measures are needed to eradicate the cancer, including very toxic chemotherapy treatments, or possibly radiation or additional major abdominal surgery to remove lymph nodes or tumor. The risk of serious complication -- or even death -- rises dramatically.

This is a classic example of the risk-benefit decision-making process in medicine. All medical treatments carry risks; one penicillin tablet can kill you. In the realm of testicular cancer, the calculus is straightforward: if there is a solid growth in the testes, it needs to be removed surgically, with a known 3-5% risk of removing a testes which does not contain cancer. Performing a biopsy first, to spare this small percentage of testes which do not have cancer, exposes the patient to the more serious risk of spreading the cancer, and changing treatment from simple low-risk surgery to high-risk chemotherapy, radiation or major surgery.

The details of this specific case are unknown, but easy to imagine: the patient presents to the doctor with an abnormal testes, which the doctor finds very suspicious for cancer. The physician recommends surgical removal, the patient assents, and the pathology report shows the uncommon benign tumor. The patient is understandably unhappy about losing a testicle unnecessarily (as he understands it).

Perhaps the physician did not explain the above scenario to the patient; perhaps he did, but didn't document it, and the patient doesn't remember it. If it's not on paper, it didn't happen, from a legal standpoint. There are, of course, issues of informed consent here: patients have a right to decide on treatment after being presented with the risks, benefits, and alternatives. But very few patients, when presented with the above facts, will refuse treament and take the risk of unnecessarily spreading a curable cancer.

So the informed consent issue (likely the basis for filing this case) becomes a loophole through which the unhappy patient seeks redress for an undesirable outcome. The physician likely made the correct medical decision -- one endorsed as standard of care by every expert in testicular cancer -- and is rewarded with a lawsuit.

Now of course, the physician in this case may have been incompetent, and removed a testes at low risk for cancer, or failed to meet the standard of care for half a dozen other reasons. But far more often than not, this is not the case. The outcome was bad, the loophole was found, and the solution was a lawsuit.

These are the situations which keep doctors up at night, burden the doctor-patient relationship with highly detailed, patient anxiety-provoking, time-consuming and paperwork-generating counseling sessions, and undermine the trust between doctors and their patients. Much emotional and physical energy is diverted from caring for the patient and building the relationship to self-defense measures. This is the true cost of defensive medicine: not merely the ordering of expensive, low-yield tests in anticipation of future depositions and Monday-morning legal quarterbacking, but the undermining of the trust and relationship between doctor and patient.

The case may go nowhere, but there will be significant costs to litigation even then, and inevitable emotional, personal and professional detriment to the physician. The patient may win the suit, but the settlement received will not restore his testicle. Nor will the settlement change the behavior of the physician, who likely acted in accordance with proper professional standards and training. The only effect will be to make him or her more wary of patients, and perhaps slower to remove a malignant testes in the next patient who presents with cancer.

Is this really the best system we can devise for resolving undesireable medical outcomes?