I was searching for some infomation on the doctor-patient relationship that exists in respirator fitness testing. Someone who has to use a respirator is required to undergo a physical examination
I found this instead (much more interesting).
I emailed it to The Mentor with this question and comments.
Do you think that any of the licensed professionals (X-ray tech, physician, lawyer, truck driver) carry any ethical responsibility for the delayed diagnosis?
Testing firms contend they are not practicing medicine
Sunday, April 4, 2004
By EDDIE CURRAN
Mobile Register Staff Reporter
Imagine going to a doctor, getting a chest X-ray and having the doctor diagnose you with lung cancer - then not telling you.
In January 2001, the family of deceased pipe worker Max O. Day Jr. accused Mobile-based Respiratory Testing Service Inc. of doing just that.
In a lawsuit filed in Albuquerque, N.M., Day's family contended that the company, owned by Mobile businessman Charles Foster, was practicing medicine when it tested Day and other workers for asbestos-related lung disease.
Respiratory Testing had an obligation to inform Day that he had cancer, and its failure to do so diminished his chances of surviving the lung cancer that killed him five months later.
"We alleged they had a duty once they started practicing medicine to adhere to the same standards that doctors and radiologists have to adhere to," said Roger Eaton, an Albuquerque lawyer who represented Day's family. "We framed it just like a medical malpractice case."
The lawsuit asserted a connection - the hallowed doctor-patient relationship - that Mobile-based asbestos screening companies and doctors employed by them have long contended does not exist in their business.
As Heath Mason, co-owner of Pascagoula-based N&M Inc., put it in a deposition taken last summer, people tested by his asbestosis screening firm are considered clients, not patients.
Asked why, the Grand Bay man said, "Because we have no doctor-patient relationship with these people."
In the traditional doctor-patient relationship, physicians have an obligation to notify patients of significant medical findings, such as cancer.
As described in court papers and by the lawyer for Day's family, March 3, 2000, appears to have been a typical day on the job for Respiratory Testing Services.
One of the company's 18-wheeler testing labs - complete with X-ray and breathing test machines and interview rooms - arrived in Albuquerque in search of evidence of asbestosis among members of the local plumbers and pipe fitters union.
As with many of Respiratory Testing's assignments throughout the country, the Albuquerque testing date was arranged by a Virginia lawyer, J. Michael Fitzgerald.
Fitzgerald specialized in signing up clients for asbestos-damage lawsuits, then transferring those cases to bigger law firms that actually filed the cases, according to court records in other cases.
From about 1997 to 2001, when they split over money, Fitzgerald and Respiratory Testing were something of a team, court records show. Many of Respiratory Testing's travels throughout the country were arranged and paid for by the attorney.
Tests were free, as long as the workers agreed to be represented by Fitzgerald should their tests show asbestos-related lung disease, said Eaton, the family's lawyer.
"If you didn't sign up, you didn't get an X-ray. That was the deal," he said.
The 55-year-old Day was of average weight, had played golf the day before he was tested and "seemed to be fit in all regards," Eaton said.
"He'd been a pipe fitter. He basically worked on a lot of nuclear plants. He'd go all over the country doing that," the attorney said.
On April 10 - or more than five weeks after the Albuquerque testing - Respiratory Testing sent the New Mexico records to Dr. James Ballard, a radiologist with offices in Birmingham and Mobile who is trained to read chest X-rays for lung disease.
Ballard saw a mass on Day's X-ray, noted the abnormality on his report and sent it back to Respiratory Testing, along with the other reports, the lawsuit states.
In late July 2000 - more than four months after his date with Respiratory Testing - Day went to the doctor, feeling bad. He was immediately diagnosed with lung cancer and died a month later.
"The family knew he'd gotten tested, so they called the lawyer's office, and he finally sent them the results," Eaton said.
Those records showed that the Birmingham doctor had done his job, but after that, "nothing happened," Eaton said.
"It just languished," he said.
As Eaton would learn, Respiratory Testing forwarded the test results to Fitzgerald, who sent them on to another law firm.
Five months after her husband's death, Day's wife sued Respiratory Testing, Fitzgerald and the union. The union subsequently was released as a defendant, Eaton said.
In its response, Respiratory Testing contended that it couldn't legally be held liable for failing to report Day's cancer to him because the company hadn't been practicing medicine when it tested him, Eaton said.
The most powerful evidence in the case was supplied by Day's fellow union members, who testified in pre-trial depositions that they, too, never received their test results.
Eaton's expert witness was a Swedish doctor who'd authored a study on the survival rates of people diagnosed with lung cancer by incidental X-rays, such as Day had, before they'd begun to suffer the symptoms of the cancer.
The doctor's study showed that people had a 37 percent chance of survival if their lung cancer was detected prior to them becoming symptomatic, Eaton said.
When lung cancer is detected after a person goes to a doctor feeling sick, the survival rate is about 10 percent, Eaton said.
"They didn't cause the cancer, they just prevented him from being able to treat it in a timely fashion," he said.
Respiratory Testing and Fitzgerald recognized the dangers of the lawsuit and settled for a confidential sum, Eaton said. The lawsuit did not specify how much money originally had been sought.
"I think they were happy to resolve it and not have to go to trial," Eaton said. "The settlement was fair, it wasn't outrageous."
There has been at least one other similar case.
In 1997, the family of a Kentucky man sued Dr. Ray Harron, a West Virginia doctor who has read X-rays for two Mobile-based screening firms. Harron, according to the complaint, notified the law firm that hired him that the man appeared to have cancer.
The man was never told. A year later his personal physician diagnosed him with lung cancer, but the diagnosis came too late, and the man died a short time later, according to the lawsuit.
A federal court judge dismissed the case on the grounds that Harron never saw the client and, as a result, no doctor-patient relationship existed.
I think this impacts the relationship we have with patients when we see them for respiratory fit testing. We can say that we are not practicing medicine, but I think we have an ethical duty to report significant findings other than those we are paid to find. That is not a hard task.
I think there was a breach on all their parts except the truck driver. The X-ray tech, according to their own code of ethics must, "Engaging in any unethical conduct, including, but not limited to, conduct likely to deceive, defraud, or harm the public; or demonstrating a willful or careless disregard for the health, welfare, or safety of a patient. Actual injury need not be established under this clause." I think that to perform X-rays and not ask what is to be done with the cases positive for disease other than asbestosis is a breach. Likewise, the physician has the same duty. Moreover, he should have understood that lawyers don't have the same legal duty to inform. Ethically, the lawyer has a very big responsibility to inform patients of the results of their exam. However, the lawyer doesn't know which reports contain significant findings. How does he know the difference between a patchy infiltrate and hilar adenopathy?
Greed is rampant in this case and makes careless disregard more like willful disregard. All of these people are licensed by the state and are required to act in the best interests of the constituent, if you will call him that at the very least. At the most, he is a human, and he deserved better treatment than that.
I understand that this patient would likely have had no survival improvement by instituting treatment in a lung cancer that resulted in death 5 months later untreated. It could also be said that those 4 months of ignorant bliss would argue well to throw this case out. However, the X-ray tech should have asked questions, the doctor should have asked questions, and the lawyer should have given all the patients their report with the advice to seed medical consultation to interpret them. All their credentialing boards should have investigated this practice. I'm still wondering about the truck driver.