In the category of ‘what goes around comes around,’ a recent event reminded me of the ironies life can bring; but this is a cautionary tale for all. At this time last year, I was immersed in a trial. While there is a general impression that hospice and palliative medicine are relatively immune from issues of tort liability and malpractice, this is proving to be increasingly untrue. In some parts of the country, trial lawyers are exploring new theories of litigation with causes of action against hospice and palliative medicine providers, an untapped and fertile ground for potential malpractice awards. While this clearly isn’t “good news,” ironically it may be another milestone in HPM’s ongoing efforts to integrate into ‘mainstream medicine.’
The case involved a middle-aged man who presented with non-small cell lung cancer. At initial diagnosis, disease seemed to be limited. He underwent surgical resection to remove the mass; however, biopsies showed tumor present in the contralateral lung, as was confirmed by subsequent bronchoscopy. After completing radiation therapy, he had two more bronchoscopies, each confirming ongoing malignancy in both lungs. He was referred to hospice when he declined chemotherapy.
His course was complicated by pain, at least in part related to post-thoracotomy syndrome. This required high dose opioids for pain management, after failure of interventional techniques and other adjuvant therapies. While on hospice over the next couple of years, he underwent further diagnostic and prognostic evaluation, including imaging studies showing ongoing progression of disease.
Then something changed. Coincidentally at the time he moved out of our service area, reevaluation by his new treatment team indicated radiographic regression. His performance status began to improve. Believing his prognosis was extending, he was discharged from hospice and his new internist assumed duties as his primary care physician (PCP), including management of his ongoing pain.
Almost two years after his hospice discharge, a suit was filed. Five years after that, the suit finally went to trial. Discovery proceedings showed that his new PCP told this patient that there was an error, and that his cancer must have been misdiagnosed because if he really had cancer in the first place, he would have died. His PCP weaned the patient off opioids (despite ongoing pain) and told him that by giving him high dose opioids when he didn’t have cancer, the hospice and yours truly as the hospice doctor, (though I was eventually dropped as a named party in the suit) had turned him into an addict, which was malpractice.
This theory that we made him an addict then formed the basis for a suit, supported by one board-certified “expert” (a very part-time, hospice and palliative medicine physician from four states away), as well as a stack of articles indicating that opioids cause harm. These studies involved street heroin users, polydrug abusers, or patients with sleep apnea; not individuals being treated under careful medical supervision for severe pain. The defense included several HPM specialists and a renowned pain specialist, all of whom agreed that care was not only appropriate, but exemplary. In the end, this jury of our peers were evidently swayed by plaintiff attorneys theatrics like: referring to the commercial showing an egg frying in the pan with the statement, “here’s your brain; here’s your brain on drugs,”; or pouring out a 50-lb bag of beans over the floor in front of the jury to indicate (without having to prove up the numbers) how many pills the patient supposedly took during his hospice stay. Defense testimony that this represented a rare case of spontaneous remission was met with derision, the implication being that claiming “a miracle” as our defense is really no defense at all. The judge, clearly trying to champion the underdog, made several rulings favoring the plaintiff, which all later agreed would have been adequate basis for a successful appeal and eventual retrial.
When the jury, in its deliberations, began sending out questions indicating that an award was being contemplated, the suit was settled. Defense attorneys wanted to limit a potential high-dollar award, while plaintiff attorneys wanted to avoid the risk of an appeal sending the case back for re-trial. Post-trial juror debriefing revealed that no one really believed anyone had done anything wrong; but, “no one can have cancer like that just go away,” and “the poor man just deserved some sort of compensation for all he had been through.”
Regarding this being a cautionary tale: all medical practitioners should be aware that at trials, our legal system is much more about theatrics than scientific facts. To plaintiff lawyers, this is a business in which they will push all limits in order to win. To defense attorneys, this is about limiting financial risk. To judges, this is often about protecting the poor and unfortunate, even at the expense of those who did nothing wrong other than not being so unfortunate. Sadly, I used to believe what we’ve all been taught: that this is supposed to be about fairness and justice. During this almost three-week trial, I heard much more talk about winning the lottery than about achieving justice.
Ironically, what served as the trigger for blogging about this (if you can believe it), is that last week we received a referral to our hospice for a now slightly older man with terrible pain due to wide-spread, metastatic non-small cell lung cancer. His statement was that he’d had a “bad experience” with hospice once, but now he believed he needed that kind of care once again. Upon legal advice, it was decided to refer him on to a different agency; one that he had not previously sued. I have to admit feeling sad over that decision, since I still believe we treated him correctly the first time, and could again provide him appropriate relief of suffering, during these, his last days. But then again, life isn’t always fair.