The Standard of Care

The first element, breach of duty, more commonly is referred to as failure to abide by the applicable “standard of care.” The first question this raises is: Who establishes the standard of care? Because of the complexity of medicine, it is almost universally held that jurors may not create the standard to which doctors are held; rather, jurors must apply the standard that is recognized by the medical profession. This standard generally is established through expert medical testimony. Unfortunately, litigation often is seen as a battle of experts, wherein the jury is left to measure the credibility of two competing viewpoints. As might be expected, this at times leads to confusion in a juror's mind. Medicine is not static, and the overlap between competing schools of thought or evolution from a prior practice to a more current approach creates a gray zone wherein most litigation of this nature occurs. The only remedy for the physician is to stay constantly informed about developing practice parameters and understand when to refer patients to those with greater expertise. If the physician elects to provide treatment in an area not usually managed by those with his or her training, the physician may be held to the standard of the specialist whose role has been assumed.

The question of who is qualified to act as an expert often creates intense argument at trial. It seems logical that an oncologist should be called to testify against an oncologist or a radiologist against a radiologist; however, this is not always the case. In most jurisdictions, if an expert can demonstrate an understanding of the appropriate standard of care, either through training, practice, or association with those in the field, he or she often is given the latitude to testify. It, then, is up to opposing counsel to assist the jury in weighing the credibility of this testimony by demonstrating any shortfalls that the individual may have in his or her understanding of the relevant medical practice.⁵

In addition to the use of expert testimony, either side may attempt to establish the standard of care by referring to general medical literature and practice parameters. For example, a joint effort by the American Colleges of Radiology, Surgeons, Pathologists, and the Society of Surgical Oncology has resulted in practice guidelines for breast conservation treatment, against which one's actual practice may be measured.⁶ Although most jurisdictions currently hold that such literature and guidelines, if established as authoritative, may be introduced as some evidence of the standard of care, they are not considered to be dispositive of that issue. The usual practice is to preclude the introduction of such parameters to establish the standard but to allow it in cross-examination and impeachment of the opposing side's expert. In this fashion, the jury has the benefit of the standards when measuring the testimony of an expert and may consider them as they deem appropriate.⁷

A final point to consider is whether the standard of care is that of the physician's own community or a more broadly based standard. In earlier times, the standard was that of each physician's local community. This was necessitated by the often significant difference in facilities and equipment from one community to another and the rather laborious dissemination of medical information. With the advent of mass communication and educational techniques, as well as the proliferation of technology to some of the most remote communities in the United States, the local standard has given way to a national standard of care. This is best evidenced by board examinations, which are national in scope. As a result, physicians can expect that the standard to which they must adhere will be that normally accepted in the country.

Causation

To impose liability, not only must there be a breach of the appropriate standard of care, but that breach must be causally related to an injury. In legal terminology, the term proximate cause generally is used. This was discussed most eloquently by a prominent legal scholar who wrote:

In a philosophic sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events and beyond. But any attempt to impose responsibility on such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation.” As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and with such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of an act, upon the basis of some social idea of justice or policy.⁸

In applying this concept, most jurisdictions now require proof that “but for” the act, the injury would not have occurred. This test is explained most clearly in jury instructions such as the following:

Negligence is a legal cause of injury if it directly in a natural and continuous sequence produces or contributes substantially to producing such injury, so that it can reasonably be said that but for the negligence, the injury would not have occurred.⁹

When following this instruction, a jury could not impose liability in most instances, unless it determined that the act had probably (interpreted as a greater than 50% chance) caused the injury. Cancer cases, however, present a complicating factor. There are patients who when they first present to a physician's office have less than a 50% chance of avoiding an adverse outcome, whether that outcome is death or other injury. As a result, if such were to go to court, it could never be said that “but for” the negligent act of a physician the injury occurred.

The court's have recognized this difficulty, but have split on the manner in which they handle the problem. In fact, two conflicting schools of thought have developed for such cases. Although both express the traditional concept that the plaintiff must prove that it is more likely than not that an injury was caused by the physician's act, they disagree as to the nature of the injury and the evidence required.

The first school of thought focuses on the actual illness and/or death of the patient as the injury. Courts that follow this approach require that it must first be demonstrated by the plaintiff that there was a greater than 50% likelihood of avoiding an adverse outcome when the patient first presented. It must then be proven that, as a result of the physician's negligence, either an adverse outcome has already occurred or the chance of avoiding the injury has been reduced to below 50%. In other words, either the injury has occurred or it is now more likely than not that it will.

Courts that follow the second school of thought hold that the injury that must be proven is not the illness and/or death, but rather the loss of any percentage of opportunity to avoid that adverse outcome.¹⁰ Those who adhere to this standard have determined that regardless of the initial percentage of chance of survival and/or avoiding illness, if that percentage has been reduced, then an injury has occurred and that injury is compensable.

An example of the application of this expanded rule occurred in a case¹¹ in which a man sought medical therapy for gastric difficulties. Although he was suffering from gastric cancer at the time, it was not diagnosed, and he died 18 months later. The testimony at trial was that he had only a 30% chance of cure at the outset. In considering this, the court noted that medical science has given patients real chances to recover, sometimes only a small chance, but still a chance, in circumstances that used to be hopeless. When patients go to the doctor with serious illnesses, they expect to have those chances that medical science has provided.¹²

Even though it could not be said in this circumstance that the failure to diagnose caused the death, it did, in the court's opinion, decrease the chance of survival, which was compensable.

Damages

The final element in establishing liability is damages; in other words, if the act fell below the acceptable standard, it must have resulted in an injury or loss. Such damages are uniformly divided into compensatory and punitive. Compensatory damages are those meant to compensate an individual for a loss and are measured by the value of that loss. Punitive damages, however, have no relationship to the loss but are intended simply to punish or deter conduct that society deems to be outrageous. As might be expected, the type of act that is necessary to support this form of compensation is significantly greater than simple negligence, and it generally requires that the act be so wanton or reckless as to be tantamount to an intentional act. Such is seldom seen in these cases.

Compensatory damages, on the other hand, have seen expanded application in litigation involving cancer. One example is the recovery that was allowed for “lost chance of survival” discussed earlier. Fortunately, a number of courts adopting this more inclusive test tend to ameliorate the rather harsh result that occurs when there was never a probability of survival. They accomplish this by limiting the amount recovered to less than the value of all damages that flowed from the death. For example, if a 30% loss in the chance for survival occurred, the injured party may only be entitled to recover 30% of all damages related to the patient's death.^13,14

Some courts also have expanded the traditional concept of mental anguish in cancer cases. One example occurred in a case where a patient was referred to an oncologist to discuss chemotherapy after a mastectomy for breast cancer.¹⁵ A recommendation was made to use chemotherapy, thereby increasing her chances of avoiding a recurrence of the cancer. The patient agreed, and a dose of Cytoxan calculated by the physician's nurse was administered. The calculation turned out to be in error; it called for five times the appropriate dose. Although the calculation was checked by the physician, the error was not caught. On a return visit to the physician's office, the patient explained that she had become extremely ill and did not wish to continue the chemotherapy. The overdosing was discovered at that time. Unfortunately, the medication had damaged the patient's bone marrow. The cancer ultimately did return and, because of the bone marrow impairment, could not be treated by chemotherapy. At trial, the patient was unable to demonstrate that the Cytoxan was related in any way to the recurrence of the cancer. However, the court found that her mental anguish could reasonably have been increased by the knowledge that her plight was now hopeless in that she could no longer be treated with chemotherapy for this condition.

In most circumstances, there must be some physical injury or impact causing mental anguish before a court will allow a claim for mental anguish, however it is described. This helps to discourage fraudulent claims. In the case discussed herein, there was a physical injury (ie, damage to the bone marrow) from which the emotional distress arose. There have been, however, exceptions to this general rule. Although not universally recognized, one such exception has been noted in some jurisdictions where a diagnosis of cancer was made and no cancer actually existed, thus causing only emotional distress. A case where a dentist observed a lesion on the roof of a patient's mouth is illustrative of this.¹⁶ The dentist performed a biopsy, and although no cancer was noted in the specimen, the dentist referred the patient to an oral surgeon. The oral surgeon advised the patient that there was a 50% chance that she was suffering from lethal midline granuloma, a rapidly growing lesion that may result in death. Ultimately, it was determined that no cancer existed. The patient sought recovery for “cancer phobia.” The court noted there had been expert testimony that the dentist deviated from acceptable standards in telling the patient she had cancer when his own test results were negative. It was then reasoned that it was foreseeable to expect that a mistaken diagnosis of cancer would result in emotional harm to the patient.

Such cases place the physician in an awkward circumstance. The physician cannot avoid the responsibility of communicating his or her opinion to the patient. If that communication is not based on sufficient information, however, it may be the basis for a cause of action and damages. The lesson is that when imparting the diagnosis of cancer, the physician should take reasonable steps to ensure that the diagnosis has a medical basis and include this in the discussion.