Read Part 1 of this story here.

This is a picture of my Dad celebrating his 60^th birthday. Four weeks later he was coughing up blood. Eight weeks after that he was dead. He looks healthy in this picture, but, unbeknownst to him, his chest X-ray taken 7 months earlier had been read as showing a small cancer on his lung. Unfortunately, the doctors forgot to tell him.

During the 8 weeks of his steady decline in the face of aggressive treatment, my father occasionally mentioned the lawsuit he wished to pursue. He was angry that his cancer had been diagnosed, but he had never been told. He was especially angry that his doctors lied to him when he asked whether the cancer had been seen on an earlier X-ray. It gave him some comfort, though, to know that if he died, the money from a lawsuit allow him to continue to care for his family, even after death. Sadly, his faith in the justice system was misplaced, just as his faith in the medical system had been.

Within days of my father’s death, my mother was talking about filing the lawsuit, and my husband, a trial lawyer, was trying to persuade her not to do it. He argued that a lawsuit would be agonizing, would take years, and most importantly, that she would not win.

Proving medical malpractice requires four elements: duty, breach, damages and causation. There was no question about the duty and the breach. The doctors had had a duty to tell him about his cancer after they found it on his chest X-ray, and by failing to tell him, they had breached this fundamental duty. There was no question about the damages, either. He was dead.

Three out of four elements is not enough to prove malpractice. All four must be present. My husband predicted that the doctors would stake their case on the element of causation. They would argue that the failure to notify my father of his cancer was regrettable, but harmless, because he would have died anyway. Ironically, they would use the tragic results of their failure --- the rapid growth of the untreated tumor, and the inability of chemotherapy to halt the growth of the greatly enlarged tumor --- to support their defense.

My mother was adamant. She was going to hold the doctors accountable, and it was simply inconceivable that she would not win. Although he strongly disagreed, my husband helped her retain the premier malpractice lawyer in our city. When the settlement offer came, $25,000, he advised her to accept it, but she declared that she would never settle.

The legal system moves at a glacial pace, and my father’s malpractice suit was not exception. He had died in December of 1989. The trial did not begin until January 1999, almost 10 years later.

I testified as a prosecution witness, telling the jury about the delayed diagnosis, and the doctors’ brazen lies told to protect each other. I sat through every minute of the trial. Since I believed that we would not win, I thought I could not be disappointed. I was profoundly wrong on that point. The trial was extraordinarily disillusioning.

Every doctor involved was a personal colleague with whom I had worked for years. I was not surprised that the doctors who testified would not make eye contract with me, both the defendants and those they called to help with the defense. I was not prepared, though, for the fact that they were willing to say anything, no matter how absurd, to protect each other.

The radiologist proudly described his diagnosis of the original small cancer, but then claimed that it was not his responsibility to make sure the patient found out.

The anesthesiologist acknowledged that she had seen the cancer, and the report that described the cancer, but she was just the anesthesiologist. It was not her job to tell the patient.

The urologist who was the doctor who cared for my father at the time, the one who ordered original X-ray, and received a written report of the X-ray detailing the cancer, made the most outlandish claims of all. He testified that he couldn’t be held responsible for what happened, because it wasn’t his job to know the results of the X-ray.

He actually said, with a straight face, that even though his signature was on the order form for the X-ray, he didn’t actually order it; the state of Massachusetts requires a pre-op chest X-ray for everyone over 50. Because he was mandated to order the X-ray, he couldn’t be held responsible; his name appeared on the form, but the state of Massachusetts had really been the one to order it.

Furthermore, he testified with a straight face, it wasn’t his job to read the patient’s chart. He was just a urologist and everyone knows that urologists never bother to look at the records. A prominent local urologist, a professor at the medical school across town, corroborated this outlandish claim; other doctors read the patient’s chart. No one seriously expects urologists to do so.

Finally, an oncologist, hired as the defendants’ medical expert, declared that my father would have died anyway. As my mother’s lawyer pointed out in cross examination, this same oncologist had testified more than 2 dozen times in this same court over the previous decade. And in all of the more than 2 dozen cases --- cases of breast cancer, lung cancer, prostate cancer and others types of cancer --- he had reached the same conclusion. Regardless of the type of cancer and how early or late it was diagnosed, this expert always testified that the patient would have died anyway.

For its final flourish, the defense claimed that even if the jury found that my father had died as a result of their failure to tell my father of his cancer, they should not award any compensation. My father had been 60 years old; his business had not been successful; he really wasn’t worth any money any way.

Over the course of the trial, I began to think that we might have a chance of winning. The claims of the doctors who testified were so outlandish, how could any jury believe them? The doctor whose signature appeared on the X-ray order form didn’t actually order it? It’s not the job of the urologist to read the patient’s chart?

It appeared to me that the judge believed the same thing. When the clerk handed him the jury foreman’s written verdict, he appeared shocked. Not guilty! No explanation was given, and Massachusetts law prohibits lawyers from interviewing jury members after the trial. We never found out why they had made their decision. Did they honestly believe that the doctor had fulfill his obligations? Or did they believe that my father died anyway? Perhaps they simply thought his life and death was not worth any financial compensation. We will never know.

For me, there was a startling coda to the trial, one that initially shocked me, but ultimately brought a measure of comfort. Several months later, the case was discussed in a presentation on risk management in radiology produced by the malpractice insurer, the company that had paid to defend the urologists. A radiologist friend at a different hospital recognized the details and sent me a copy of the presentation.

In the presentation the insurer acknowledged that a terrible, indefensible mistake had been made, and that they had prepared to lose the case. The insurer believed that they had won due to a faulty tactical decision made by my mother’s lawyer. He had sued only the person who was truly responsible for the mistake, the urologist who should have read the report.

Had he sued every doctor involved: the radiologist, the anesthesiologist, the internist, etc, they judged that the results would have been very different. To protect themselves, the radiologist, the anesthesiologist, and the other doctors would have been forced to acknowledge the truth: it was the job of the urologist to look at the chart, read the report, and tell the patient. Because they didn’t have to defend themselves, the other doctors were noncommittal about the issue of responsibility. Whose responsibility was it? They didn’t really know.

The insurer was acknowledging that the urologists had been responsible, that their negligence had led, at least in part, to my father’s death, and that they had gotten off because of an error in legal tactics. In a perverse way, it was comforting to know that at least they understood that the urologist had committed a terrible mistake, one that they could have and should have been held responsible for had the legal tactics been different.

More comforting was the fact that in the wake of my father’s death, the hospitals and the insurance company had issued new mandatory reporting requirements. Radiologists were now required to speak directly to the ordering doctor whenever a routine X-ray revealed an unexpected finding. And they emphasized that every doctor, regardless of specialty was, and had always been responsible for reading the patient’s chart and tracking down the results of any tests they had signed for.

My father’s death was a terrible blow, but at least his suffering was not in vain. It is far less likely that another patient will end up in the same situation: the doctors diagnose a deadly cancer, but forget to tell the patient.