Malpractice: Will a jury think money clouds your judgment?

Does it get more horrifying than this? You're sitting in a courtroom, accused not merely of medical incompetence, but of killing your patient in order to make a buck. That's one of the issues jurors faced before they delivered a negligence verdict against Neil Birnbaum, an internist in Dedham, MA.

Like many physicians, Birnbaum had signed a contract with an HMO that offered financial incentives designed to limit lab tests, screenings, prescriptions, referrals, and hospitalizations. When applied reasonably, these incentives may help reduce unnecessary or inappropriate tests or treatment. But when they're revealed in court during a malpractice trial, jurors may wonder if the incentives were partially responsible for the doctor's failure to diagnose or treat a life-threatening condition.

The court case was brought by the widow of Kimiyoshi Matsuyama, who'd come to the US from Japan as a college student in 1977. In 1988, Matsuyama, then a 34-year-old store manager, first sought medical care at Dedham Medical Associates, a large multispecialty group in suburban Boston to which internist Birnbaum belonged. At that time, he was diagnosed with possible esophagitis. Because of persistent gastric symptoms, he later underwent an upper GI series, but the radiologist reported "no abnormality of the esophagus, stomach or duodenum."

Matsuyama first saw Birnbaum with his complaints of gastric pain in July 1995, and saw him again in October 1996 and September 1997. On those visits, Birnbaum told him to take Mylanta or Pepcid AC. In August 1998, still taking Pepcid, Matsuyama went to Dedham Medical's urgent care clinic with complaints of indigestion, reflux, and epigastric pain. There, another internist diagnosed gastritis, prescribed Zantac, and recommended a follow-up with Birnbaum for possible GERD.

The next week, Matsuyama saw Birnbaum, who continued the Zantac, and noted in the chart: "Consider GI series." He also ordered a test for H. pylori. When the results came back positive, he prescribed Prilosec and antibiotics. When Matsuyama saw Birnbaum again in November 1998, the doctor wrote, "Stable on Zantac." Matsuyama saw Birnbaum once more in May 1999, with complaints of reflux, abdominal pain, and loss of weight. This time, Birnbaum ordered an upper GI.

The radiology report showed a large mass in the distal stomach with the appearance of a carcinoma. A subsequent endoscopy, ultrasound, and CT scan revealed a gastric adenocarcinoma. An exploratory laparotomy confirmed the presence of an inoperable tumor occupying 60 to 70 percent of the stomach, with evidence of the cancer spreading throughout the peritoneal cavity. Matsuyama underwent palliative surgery, but died about five months later in October 1999, at the age of 46.

A bonus based on limiting tests and referrals In 2000, Matsuyama's widow filed a malpractice suit against Birnbaum, accusing him of negligence. The suit claimed that his failure to order appropriate tests, his reliance on mostly over-the-counter medications, and his failure to properly evaluate and diagnose Matsuyama's stomach cancer over a five-year period caused his untimely death.

The plaintiff's attorney, Max Borten, noted that even though another Dedham Medical doctor had suggested an upper GI series back in 1994 if Matsuyama's symptoms persisted, and Birnbaum had also suggested it in his notes in September 1998, he never actually ordered the test until May 1999, when it was too late. Borten pointed out that people of Japanese origin are known to be at much higher risk for stomach cancer than the general population in this country, a fact that should have persuaded Birnbaum to order tests to check that possibility.

Birnbaum's attorney countered that because Matsuyama's symptoms had been "intermittent, nonprogressive, and responsive to medications," the doctor's treatment had met the applicable standard of care. He argued that Birnbaum had responded "promptly and appropriately" in May 1999 when the symptoms called for further studies, and that "nothing he did, or allegedly failed to do, caused or contributed to . . . Mr. Matsuyama's unfortunate death."