Lack of rectal exams = malpractice?

January 5, 2006 9:21 PM

For the lawyers out there: if a family physician has never performed (or offered to perform) a yearly rectal exam on a 50+ year old, are there possible grounds for malpractice if the patients develops rectal cancer 10-15 years on? Does the fact that the patient is part of a population that has an increased risk of developing colorectal cancer matter?

Of course, I'm not seeking specific legal advice, but I'm wondering if there's any precedent for this...

posted by greatgefilte to Law & Government (14 answers total)

"Failure to diagnose" malpractice is a huge, huge legal enterprise in the US. It would seem likely that there are some grounds. A Google search for "failure to diagnose" "malpractice" and "rectal cancer" pops up a number of responses. One link is here.

I am still considering a suit against the doctor who failed to diagnose my mother's lung cancer until a month before her death, despite biweekly visits for neck and back problems.
posted by solid-one-love at 10:12 PM on January 5, 2006

See an ambulance chaser. I don't think you will have a problem finding an attorney willing to bring a lawsuit for failure to order such a common cancer screening test. I am not sure whether it has yet risen to the level of reasonable standard of care to order a sigmoidoscopy or colonoscopy for patients over 50, despite recommendations from medical societies. This will be an issue in any trial. Further, look at all the circumstances. Did the patient have knowledge of the benefit of such tests? Were they ever discussed with the doctor? What is this population and was membership therein disclosed to the doctor? Most importantly, what are you seeking to accomplish with a lawsuit - get rich, punish the doctor, get your bills paid?
posted by caddis at 10:39 PM on January 5, 2006

You need to differentiate colon cancer from rectal cancer. They're 2 different breeds.

If someone failed to perform the test, that negligence.
If someone performed the test and failed to palpate a mass, thats incompetence.

You have to prove the link.

If he had received the rectal exam, would the physician have suspected colon or rectal cancer?

This may be a moot point, because men 50+ should have more than just a rectal exam.
A colonoscopy should have been done the minute he hit 50.

But I'm just an erdoc.
posted by erd0c at 10:50 PM on January 5, 2006

The screening tests that will matter are not a digital rectal exam or even the stool test; if you detect cancer that way the patient is probably already too far along to save. The test should be either a sigmoidoscopy or colonoscopy, with only the latter being able to find growths deep in the colon.
posted by caddis at 11:54 PM on January 5, 2006

I assume the man in question had reported symptoms and employed the physician to investigate? Surely you can't sue someone for lack of omniscience.
posted by londonmark at 1:07 AM on January 6, 2006

Speaking very generally, there are two significant issues that will impact whether such a claim would be successful (if the question is whether you could sue, as opposed to sue and win, see caddis' response): (1) whether, as caddis indicates, the current standard of care for a family physician says that such tests should be performed, and (2) causation -- i.e., whether, if such a test had been performed, there would have been a different outcome. In this case, it would be the plaintiff's responsibility to prove that if the test had been performed, something would have been discovered, and that treatments could have been initiated which would have resulted in a more favorable outcome. This element can often be very difficult to prove, particularly with diseases that manifest themselves many years later.
posted by pardonyou? at 6:44 AM on January 6, 2006

It is potentially more than a lack of omniscience. Patients put their care into the hands of their primary care physician and rely upon him or her to perform sufficient test to measure their health. This does not mean every test under the sun, but it probably doesn't mean no tests at all. The question becomes did the doctor act in accordance with the standard of care? That is would a reasonably prudent physician have suggested that starting at age 50 this patient should have a colonoscopy to check for colon cancer, a disease which is quite preventable if caught early and rather deadly if not? Law suits have been brought over less. I have no idea whether people have won lawsuits over failure to suggest colonoscopy, but it does seem to be widely recommended that people over 50 have one every five years or so, earlier and more often if they have risk factors such as a family history of colon cancer. Theoretically there could be a cause for malpractice. However, I personally think that such a suit should be avoided. How high a standard of perfection is it realistic to hold doctors who despite some airs to the contrary are all too human? If on the other hand the patient came in complaining of bloody stool and the doctor sent him home with a hemorrhoid treatment and no further tests now you are looking at a far greater degree of negligent practice.

on preview - I agree pardonyou?, but there is ample evidence that early detection and removal of polyps can prevent colon cancer.
posted by caddis at 6:56 AM on January 6, 2006

But after 10-15 years? Come on. I thought the general butt exams were supposed to happen yearly after age 50.
posted by jmgorman at 7:45 AM on January 6, 2006

Wow, maybe I'll read a little closer next time. The doctor should have probably mentioned that, but didn't said patient see all the PSAs about these exams?
posted by jmgorman at 7:48 AM on January 6, 2006

Response by poster: I'm still finding out all the details of the case (it's not my family member who's the patient, I'm a bit relieved to say. Had it been, the ambulance chasers would've been called in at the first sight of diarrhea.), so some of the relevant questions can't be answered just yet. The tumour is definitely in the rectum, not the colon, so I think there's a chance that a digital rectal exam might've spotted it earlier on (and a colonoscopy even more so, I'd imagine) and led to more effective treatment, but that's not for me to say.

As for the population this fellow belongs to, he's a 60 year old man, pale as a ghost, with a large yarmulke on his head (i.e. Ashkenazi Jew). The doctor in question is Jewish too, I believe, not that I think that should make any difference in terms of negligence, but only because you might expect him to be a bit more informed about the genetic tendencies of the tribe. Or not, I don't know.

And caddis, luckily there are no medical bills to be paid, as we're in Canada, but the doctor seems to be slightly quackish -- when the patient first reported excessive diarrhea and weight loss several months ago, he suggested stopping some of his medications, which he'd been on for years. I don't know if those few months would've altered the course of the disease, but you'd think by that time the doctor would've at least ordered a colonoscopy...
posted by greatgefilte at 8:06 AM on January 6, 2006

...as we're in Canada...

greatgefilte, this is probably a significant fact. Canada may well have unique malpractice laws that differ from the U.S. (heck, states within the U.S. have differing laws). If you're really looking for solid guidance, you'll probably need to get it from a Canadian lawyer.
posted by pardonyou? at 8:28 AM on January 6, 2006

Well, if you want to know what the recommended screening strategies are currently in Canada you can look at:
Colorectal cancer screening: Recommendation statement from the Canadian Task Force on Preventive Health Care

The recommendations from 1994 are here.
posted by v-tach at 8:50 AM on January 6, 2006

Greatgefilte...you might want to specify that you need Canadian advice, if that is indeed the case. Although it is recommended for Americans to have colonoscopies as part of routine screening, you previously needed to have more of a case in most Canadian provinces. I think Health Canada only came down with the recommendation for routine screening (every 2+ years after age 50) recently. However, a family history might influence that. I know it did for me -- I got my first scope at age 24. IANAL.
posted by acoutu at 9:04 AM on January 6, 2006

Response by poster: You're right, I should've pointed out the Canadian aspect of it. But I'm interested in the US take on it as well, as right now any legal action is, of course, purely theoretical.
posted by greatgefilte at 10:16 AM on January 6, 2006