Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A 47-year-old man in Michigan went to his internist with complaints of oral discomfort and white patches on his tongue. He was subsequently diagnosed with oral leukoplakia, which is considered precancerous. The patient’s symptoms were treated, but no further follow-up testing was recommended or scheduled.
Subsequently, a second internist evaluated the patient in the emergency department of a major medical center and provided symptomatic treatment without arranging follow-up. The patient was later diagnosed with stage IV oral cancer and required radiation therapy, chemotherapy, and surgery to remove the lesion. In addition, he underwent a second procedure to reconstruct his jaw using bone grafting.
The plaintiff alleged negligence in the failure to refer him for a biopsy, maintaining that earlier diagnosis and treatment would have prevented the need for extensive surgery and treatment. The defendants claimed that the treatment given was appropriate and that the plaintiff’s drug use, to which he admitted, had caused or contributed to his disease.
Outcome
According to a published account, a $367,500 verdict was returned against the medical center, with 60% comparative negligence being found against the medical center and 40% attributed to the patient. (Explanation follows.)
Comment
Persistent oral lesions require a definitive diagnosis and should be considered cancerous until proven otherwise. Oral cancer can present as an obvious mass but can be as subtle as a mucosal change.1 Oral leukoplakia is the most common premalignant lesion and is defined by the World Health Organization as “a white patch or plaque that cannot be characterized clinically or pathologically as any other disease.”
In the United States, cancers of the oral cavity and oropharynx are the ninth most common cancer.2 Approximately 90% of oral cancers are squamous cell carcinoma, occurring most commonly on the tongue, floor of the mouth, and vermilion border of the lower lip. A full 60% of oral carcinomas are advanced by the time they are detected, and about 15% of patients have another cancer in a nearby area, such as the larynx, esophagus, or lungs. Tobacco use and heavy alcohol use are the two main risk factors, accounting for 75% of oral carcinomas.3
When primary care providers casually address oral lesions, there is potential for a missed diagnosis. This potential is greater when a clinician may erroneously believe that a dentist will evaluate the lesion at a routine follow-up—but that follow-up never happens.
Oral care presents an overlap between dentistry and medicine, with both clinicians sharing responsibility but sometimes finding ways of excusing themselves from it. Problematically, dentists and oromaxillofacial surgeons may not be part of the usual referral network for primary care providers. This presents barriers to referring patients and receiving feedback after the evaluation takes place.
When a decision is made to refer the patient for a suspicious oral lesion, do so formally with a referral to otolaryngology or an oromaxillofacial surgeon. Should the patient wish instead to follow up with his or her dentist, make sure that a specific date is chosen (not “at the next six-month routine visit”). Ensure the referral is part of your formal plan and recorded and documented. Follow up with referral documentation to the dentist, and schedule your own follow-up to be sure the evaluation occurred and the dentist’s feedback is received. Both dentists and primary care clinicians should work together to ensure that a suspicious lesion receives a biopsy.
In this case, a decision to biopsy the lesion may have resulted in the need for less extensive surgery and treatment and a better prognosis. Here, we have a legally interesting situation in which the jury found comparative negligence and reduced the plaintiff’s award based on the jury’s perception that he contributed to his condition (ostensibly because of his drug use).
As clinicians, we are duty-bound to take optimal care of every one of our patients—no matter how we find them. Blaming a patient for a bad outcome can be risky. Even as a defense strategy in a medical malpractice case, alleging plaintiff contribution is tricky: It can backfire badly if the jury is angered by clinician attempts to assign a share of the blame to the patient.
Comparative negligence provides an offset for the patient’s contribution to his situation. Many jurisdictions follow a “50% rule” and bar plaintiff recovery if he/she is deemed half responsible (50%) or more, and others follow a modified “51% rule” in which the plaintiff can recover if he/she was half responsible, but not more (ie, 51% at fault). Thirteen states follow a pure comparative negligence rule that permits recovery if the plaintiff is more than 51% responsible (in theory, even 99%).