Is this doctor to blame for his brother's death?

Joseph LaBricciosa's sister-in-law thought so, and sued him for malpractice. But what would you have done in his place?

By Neil Chesanow

Joseph LaBricciosa, an FP in the Philadelphia area, has lived through a nightmare. First, he lost his brother, Robert, to colorectal cancer. He then was sued by Rob's widow for medical negligence. A jury not only found for the plaintiff—it awarded her a staggering $8.25 million.

On Dec. 23, 1993, Rob, then a 32-year-old CPA, visited Joe in his office. Six months earlier, Rob had begun experiencing intermittent rectal bleeding and constipation and had noted "maroonish" blood on the toilet paper. He said he hadn't lost any weight.

The LaBricciosa family had a history of hemorrhoids, but no other rectal problems. Even though Rob had been Joe's patient for four years, he squeamishly refused to submit to a digital exam. Joe finally coaxed him into it—and detected an internal hemorrhoid. A stool guaiac test was positive. Joe wanted to perform an anoscopic exam to confirm the hemorrhoid, but when Rob saw the device he exclaimed, "You're not going near me with that!"

Joe didn't press the issue. Instead, he prescribed Proctofoam and hydrocortisone cream and asked Rob to schedule a follow-up visit for re-evaluation in three to four weeks.

Rob never made the appointment. However, the brothers subsequently saw each other two or three times a month at various family functions, and Rob made no mention of further bleeding. Nor did Joe ask. Eight months later, in August 1994, Rob returned to Joe's office for a minor upper respiratory tract infection. Neither brother mentioned rectal bleeding then, either.

In September—nine months after the initial visit—Rob was back. He now told Joe that he had been constipated for months, and his stool was thin and ribbon-like. Alarmed, Joe insisted on performing an anoscopic exam. It showed inflamed mucous membranes in the rectum, but fecal debris obscured anything else. Joe then accompanied Rob to a gastroenterologist for a flexible sigmoidoscopy. The diagnosis: adenocarcinoma of the rectum. A chest X-ray also revealed metastatic pulmonary lesions.

Rob immediately underwent an exploratory laparotomy, which showed a large, bulky tumor occupying the rectosigmoid colon behind the bladder. The tumor was fused to the pelvic wall. Radiation therapy, chemotherapy, and resection of the sigmoid colon and rectum were all tried. But in January 1996, just over two years after first mentioning the rectal bleeding to his brother, Rob died. He left a wife, a 5-year-old daughter with cerebral palsy, and an infant son.

Two months later, an attorney representing Rob's widow Bernadine, a 34-year-old nurse, requested Rob's medical records from Joe. And in August 1996, Bernie sued Joe for medical negligence. Given Rob's presenting symptoms, she charged, Joe should have made a differential diagnosis and promptly referred Rob to a gastroenterologist for further testing. Failure to do so for nine months allegedly reduced Rob's chances of survival from good to nil and deviated from the standard of care.

Was there really any hope for a cure?

In the trial of LaBricciosa v. LaBricciosa in February of 1999, both sides presented expert witnesses with impressive credentials. Medical oncologist Donna Jean Glover appeared for the plaintiff. Maroonish blood—as opposed to bright-red, oxygenated blood—was a clear indication that the blood had "been sitting [in the rectum] a while," she testified. That suggested a serious blockage. In addition, a patient with a six-month history of rectal bleeding and a positive stool guaiac test "should have had a flexible sigmoidoscopy, and if that was negative, a full colonoscopy or barium enema study, to look for a lesion in the bowel."

That Rob had been only 32 was irrelevant, Glover insisted. One in 20 Americans will develop colorectal cancer, and Joe should have ensured that the mass he felt during his digital examination of Rob's rectum "was an internal hemorrhoid and not a polyp or not a cancer." That Joe didn't ask Rob about the problem until Rob came to see him again nine months later, despite numerous opportunities to do so, also represented "a deviation from the standard of care."

Because the malignant mass ultimately excised by the colorectal surgeon was 9 inches long, "I think that the doctor, Joseph, felt the tip of it with his finger and thought it was an internal hemorrhoid," Glover surmised. She also said that Rob probably had Dukes' stage B or C cancer at the time of his initial visit. The latter, she said, has a cure rate of over 60 percent. By going undiagnosed and untreated for nine months, the cancer was allowed to metastasize to Rob's lungs, sealing his doom. While chemotherapy doesn't reduce tumors in every patient, she added, it did in Rob's case—indicating that early intervention could have improved his chance of survival.

Appearing for the defense, oncologist David Harris disagreed. Harris maintained that when Rob first saw his brother for rectal bleeding, he was probably already terminal. That's because colorectal tumors are notoriously slow-growing. It would take seven to 10 years for Rob's tumor to achieve the mass that the surgeon resected 13 months later, as well as metastasize to Rob's lungs to the extent that it did. "So when we discover a tumor, and we say it's early, it's not really early," Harris explained to the jury. "The tumor is close to killing you by the time it's diagnosed." For Rob to have had "an excellent chance" for a cure, as Glover contended, he "would have had to be diagnosed five years or more before the time that he saw his brother," Harris concluded.

Harris also disagreed that chemo had worked. "The fact that [an X-ray shows] you shrink something proves very little," he testified. "More times than not, [such] shrinkage is not associated with any prolongation of survival." In fact, after the initial round of chemo, Rob's CEA level rose from 13 to 17, the treating oncologist wrote in the chart. Does a rise in the CEA level indicate a positive response? Joe's attorney asked. "Not in my opinion and not in the opinion of the doctor who was treating him," Harris replied.

An internist weighs in on the standard of care

To offer a primary care perspective, the defense presented David S. Brody, chief of general internal medicine at Philadelphia's Hahnemann University School of Medicine. Oncologist Donna Glover had testified that Rob's purportedly less-oxygenated maroonish blood should have alerted his doctor brother to the possibility of a colonic obstruction. Brody disagreed. "Most patients would have a difficult time distinguishing maroonish blood from bright red blood, particularly when it's mixed with stool," he said. Since the tumor and the hemorrhoid were only a few centimeters apart, "it's unlikely that the bleeding from a tumor would look any different at all from hemorrhoidal bleeding."

Brody then cited a study of the population of Rochester, MN, because "excellent data [exist on colorectal cancer rates for] just about everybody who lives there." The study showed that residents under 35 were about 100 times less likely than those 55 to 65 to contract the disease. "So colon cancer is really a disease of older people," Brody informed the jury, adding: "All the screening recommendations target those individuals who are 50 and older, because the incidence of colon cancer [in people who are] younger is so low it's not really worth screening for. That's particularly true of individuals who are less than 35, as Robert LaBricciosa was."

Brody also mentioned a second study—this one of patients 50 and older who reported to their physicians that they saw blood in the toilet or on toilet paper, or discovered rectal bleeding on self-examination. Only 38 percent were promptly advised to see a specialist for a complete diagnostic evaluation. The rest were told to schedule follow-up visits, as Joe's brother was. "This is the closest I could get as to what the actual standard of care is in the community," Brody testified, pointing out that patients in the study "probably had a risk [of having colorectal cancer] 100 times greater than Robert LaBricciosa did."

As Brody concluded in a report he wrote for the defense after studying the LaBricciosa case: "There is nothing about Mr. LaBricciosa's presentation that is inconsistent with a diagnosis of hemorrhoids. In fact, given his family history of hemorrhoids, his age, and the fact that he otherwise appeared to be in good health, hemorrhoids would have been far and away the most likely diagnosis."

Anatomy of a verdict: What was the jury thinking?

Even in the Philadelphia area, where patients sue physicians in record numbers and juries often give plaintiffs record sums, the $8.25 million award in LaBricciosa v. LaBricciosa shocked doctors. The median award for medical malpractice cases since 1990 has been $590,000 in Philadelphia and $311,000 in the rest of Pennsylvania.

"Going in, no one knew what the outcome would be," says Derek Layser, Bernie's attorney. "But as the trial unfolded, I thought I was going to get a favorable verdict." The key issue for the jury, Layser believes, wasn't really the standard of care. That's because Joe's attorney didn't ask oncologist Donna Glover, the plaintiff's expert on that standard, a single question about it, and the defense expert, internist David Brody, was a "weak" witness, in Layser's view. Instead, the crucial issue was causation, Layser says—"the length of the delay in the diagnosis and what effect that had on Rob's cancer."

The record-setting award didn't surprise Layser. "You had a young widow with two young children—one of whom had cerebral palsy," he reflects. "And most people, including the physicians, agreed that just doing a digital exam during Rob's initial visit to his brother wasn't enough. If he'd had one episode of rectal bleeding, then you'd be all right. But six months? That was a chronic condition and demanded a scope." That Rob had initially refused an anoscopic exam was no excuse, Layser says. "He still should have been referred out for a flexible sigmoidoscopy or a colonoscopy."

Joe LaBricciosa has a different take on why he lost. Because Bernie was a sympathetic plaintiff, "I was a dead duck before walking into that courtroom," he believes. Moreover, state law worked against him by preventing information that might have diminished jury sympathy for the plaintiff from being introduced in court. At the time of the trial, for instance, Bernie had been remarried for over a year and bore the surname of her new husband. But the case was tried in the name of Bernadine LaBricciosa, emphasizing that she'd been widowed. The defense, however, was prohibited from pointing her remarriage out to the jury.

In addition, the judge misled the jury, Joe contends. "A medical malpractice case is a civil action for damages and nothing more," the judge instructed the jurors after the lawyers' closing arguments. "The claim does not involve the defendant's reputation, his medical practice, or his rights as a licensed physician. Therefore, no thought should be given to these irrelevant considerations in reaching a verdict in this case."

Not so, Joe protests. "A jury should know that an unfavorable verdict will result in a doctor's name being listed in the National Practitioner Data Bank. It could affect his ability to get credentialed and licensed. His insurance carrier could drop him. Or his liability premiums could skyrocket."

The verdict was appealed twice, once on the grounds that the judge had misinformed the jury in his instructions, and a second time on the grounds that the jury rendered an unfair verdict. Both appeals were denied. Bernie ultimately accepted a $1.4 million settlement.

Joe's insurer paid $200,000 to the plaintiff. The state's Medical Professional Liability Catastrophic Loss Fund, to which every doctor in Pennsylvania contributes, paid $1.2 million. Because Joe's wife had joint ownership of their assets—investments, bank accounts, cars—those possessions weren't confiscated.

A cautionary tale for doctors everywhere

Outside experts were surprised at the size of the award. "When you have such credible witnesses on both sides, you'd think it would have some influence on the amount," says attorney Lee J. Johnson of Mount Kisco, NY, who specializes in risk management issues. "The verdict seems pretty heavy-handed, especially since the experts disagreed on proximate causation."

This was especially true since Joe either reasonably met—or at least didn't grossly deviate from—the standard of care, other experts contend. "I don't think this doctor should have sent his patient to a gastroenterologist right away," says orthopedic surgeon Barry Dorn, associate director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health. "He should, however, have performed the anoscopic exam during that initial visit. But I also agree with the defense's oncologist. Rectal carcinoma is a very slow-growing malignancy. By the time you get lung metastasis, the tumor has already been there for a heck of a long time."

The study cited by David Brody—in which most patients with rectal bleeding were not immediately referred to a specialist by their primary doctors—suggests that Joe's treatment "was well within the standard of care," Johnson agrees. "But risk managers will always say you should order more tests. Why didn't this doctor just send the patient to a gastroenterologist right away instead of telling him to come back? Why didn't he protect himself by getting a good informed consent and noting it in the chart? Why wasn't the patient called or sent a postcard reminding him to return for a follow-up visit, which would have shown the jury that the doctor did everything he could?"

The answer, as Joe testified in court, is that he never dreamed his brother—or his brother's proxy—would one day sue him for malpractice. That, cognoscenti maintain, is a common but often disastrous mistake. "The only negligence I see here is that this doctor made an error in judgment by treating a family member for a potentially serious disease," Dorn observes. "He felt that the lines of communication were open, and he shouldn't have made that assumption."

The author is the former East Coast Editor of Medical Economics.

 

Neil Chesanow. Is this doctor to blame for his brother's death?. Medical Economics 2001;16:61.