DIFFICULT MORAL QUESTIONS

Question 90: What should a patient do about a physician who made a serious mistake?

Two months ago, an examination by a specialist showed that my bones are getting less dense. Her report recommended several things, including another test that involved collecting my urine for twenty-four hours. Having seen my general practitioner, Dr. Robert Burns, I went ahead with that, and, when the results were in, he asked me and my husband to come in and go over them. Dr. Burns told us the urine-sample test showed abnormally high levels of calcium and certain proteins, and said this meant that, despite my apparent good health, I was in the early stages of multiple myeloma, a type of blood cancer that affects the bones. He told us my long-term outlook was not good. Though chemotherapy would keep me going for a while after the disease took hold, treatment probably would not keep it at bay for more than a couple of years. Then it would be out of control; my bones would break up, and I would probably die in a year or two.

He arranged an examination, called a bone scan, for me at the hospital in a nearby city, and I had it the following week. They injected something in a blood vein, and a couple of hours later X–rayed my whole body. Another week, then another visit to Dr. Burns. He said the bone scan had not been any help, and I would have to see a cancer specialist. He set up the appointment for two weeks later.

We were really upset by then, and did not want to wait the two weeks to find out more about what we were up against. My husband has a cousin in California who recently finished medical school and is interning at a university hospital. We got in touch with him, and he told me to fax him the report on the urine-sample test. Dr. Burns did not want to let us have the report, but my husband insisted, and we had it faxed. That evening the cousin called from the office of a medical school professor, who, he told me, is a leading cancer specialist.

The professor was very kind. She told me at once that nothing in the report gave any reason to think I had multiple myeloma or any other sort of cancer. She explained that the report said the sample had no monoclonal proteins, which rules out multiple myeloma rather than points to it. She asked whether I had been put on any new medication or given any treatment, and I said no, but told her about the inconclusive bone scan. She said Dr. Burns should not have sent me for it, even if he’d had some real reason to think I had multiple myeloma. She asked questions about the urine-sample test, and it turned out that the directions Dr. Burns had given me were not clear, and I had mistakenly included urine from two mornings. The professor said that mistake probably partly accounted for the higher-than-normal levels of calcium and proteins. She asked whether I’d ever had any kidney problems, and I said no. She said the lab that did the urine test had included in its report a reference to a medical journal article about diagnosing certain kidney problems, and the article discussed elevated calcium and protein levels as a possible symptom. If I did have a kidney problem, she said, it might not be serious, but I should get it checked out. She told me to cancel the appointment with the cancer specialist and get a new doctor. I told her I have a good gynecologist, whose office is in the city, and the professor said I should ask the gynecologist to recommend someone trained in internal medicine. The professor even gave me her name and phone number, and told me to call her back if I had any more questions. And though she talked to me for over half an hour, she never sent us a bill.

I followed her advice and saw my new doctor two weeks later, the same day I would have been seeing the cancer specialist. When I told my new doctor that Dr. Burns thought I had multiple myeloma, he looked at the report of the urine-sample test and said the same thing the professor had. He had me redo that test, drew blood for some other tests, and gave me the most thorough physical I’ve ever had. A week ago we saw him to get the results, and he reported that I have no kidney problem and everything else is fine. He started me on a new medication to help the bone density problem, which apparently is common in women my age.

I had been going to Dr. Burns since he came here after finishing his training seven years ago. He is a fellow parishioner. I felt I should tell him why I quit so suddenly. I thought he would be glad to know everything turned out all right. But I also thought I should let him know he’d made a mistake. Of course, no great damage was done, though we had a bad couple of weeks and I got the useless bone scan. But he needs to be more careful.

I called him and told him I don’t have multiple myeloma after all. Since he did not seem to believe me, I started telling him about talking with the professor in California. He got angry at that, made a derogatory remark about women doctors and medical school professors, and said nobody could make a sound diagnosis over the telephone without examining me and having my complete record. I told him my new doctor, who is a man, agreed that the urine-sample test did not indicate cancer, but only a possible kidney problem, and as it turned out not even that, since I had not done the test right because the directions had not been clear. He replied that he did not want to hear such criticism and did not need to talk to me, since I am no longer his patient. Then he said emphatically: “But you had better see a cancer specialist,” and hung up.

My husband and I were very surprised and began wondering what to do. My husband thinks that since doctors are terribly afraid of being sued, perhaps we ought to see a lawyer and sue him: “That would wake him up, and maybe we’d get something for the two weeks he put us through.” I am not eager to sue Dr. Burns, and, thinking it over, am not sure it would be right. Being sued might just make him angry and more set in his ways. Then too, personally, I do not want to be involved in a lawsuit, and that may be influencing me too much. I am thinking of just sending Dr. Burns a letter that would not even mention suing him, but would simply describe how we felt when we thought I had multiple myeloma and ask him to put himself in the place of his patients, and think about his work and his attitude. My husband does not think that would have much effect. He says—and I see his point—that Dr. Burns probably will throw the letter in the waste basket without even reading it, or else will skim it, feel glad at not being threatened, and ignore the rest.

Meanwhile, I decided to call the professor in California to tell her how well everything worked out. She was pleased to hear my good news. When I told her about Dr. Burns’s reaction, including his derogatory remark about women doctors and medical school professors, she said he is arrogant and is going to kill a lot of people if he doesn’t change. I told her about the disagreement between my husband and me, and she said she would send us a memorandum we could use, whatever we decided to do. The memorandum, which came today, makes clear exactly what happened. The professor reports the intern’s first conversation with her, their discussion of the urine-test report, and her first conversation with me, which she seems to have taken down almost word for word.

But I still do not know what I should do.

Analysis:

This question concerns the duty to admonish. The physician may or may not be guilty of serious sin, but objectively he not only fell short in carrying out his professional responsibilities but manifested serious character flaws. Because the well-being of his other patients is at stake and the questioner apparently is free to make the effort, she has a serious obligation, which she recognizes, to try to induce the physician to examine his conscience, repent, change his attitude, and carry on his practice more carefully. However, neither suing him nor merely writing to him along the lines the questioner outlines is likely to help him. Society provides channels, such as medical review boards, through which action could be taken; but it is questionable whether such action would help. So, before using such a channel, the questioner should make another attempt at private communication. The physician might be induced to cooperate in such communication with some suitable third party, or an intermediary might induce him to take seriously a letter from the questioner. If such efforts fail, the questioner should consider using the socially provided channel to file a complaint.

The reply could be along the following lines:

Plainly, Dr. Burns’s performance and, even more, his attitude and reaction to you were seriously defective. It was imprudent and uncaring to communicate so awful a diagnosis to you and your husband without making certain it was correct; he should have either verified it first or referred you at once to the cancer specialist to check out a “possible problem,” without specifying what he suspected. Moreover, his closed-minded and defensive reaction to your telephone call manifests serious character flaws: overvaluation of professional status, overconfidence about competence, inadequate commitment to serving patients, and neglect of self-criticism and self-correction. Such defects endanger patients and are bad for this physician.

Professionals, public officials, and others whose poor performance can greatly endanger other people’s vital interests or the common good sometimes fall so far short of fulfilling their responsibilities that, if a choice must be made, those concerned should concentrate, not on helping them, but on helping their victims. In such cases, all morally acceptable means should be used to limit the injuries reasonably anticipated from their continuing defective performances, even if that probably will have the bad side effect of making them less likely to repent and reform. In my judgment, you should ask yourself whether your concern should be focused more on Dr. Burns’s present and future patients than on him.

Since you do not say whether he has made devastating mistakes in other cases, I assume you know of none. The public health department or medical society in your state probably has some sort of process by which instances of alleged professional misconduct and questionable performance, including those patients complain of, are studied by a body that can initiate disciplinary action against a physician, and perhaps even withdraw his or her license to practice. You could inquire of that disciplinary body whether any complaints are pending or any disciplinary action ever has been taken against Dr. Burns. You also could inquire discreetly around town to find out if others have had bad experiences with him. Avoid leading questions, and ask neutrally: “You have been going to Dr. Burns, haven’t you? Are you happy with him and his work?” “Didn’t Dr. Burns take care of your [deceased loved one] during his/her last illness? Would you recommend him for a similar case?” If what you find out indicates that Dr. Burns probably should not be allowed to continue practicing as he has been, I think you should gather up the evidence pointing to this conclusion and make it available to the disciplinary body. Moreover, if you do that, then, with legal advice about your responsibilities and the risks involved, you also should consider taking legal action (probably, as I shall explain, in small claims court), and informing the local media as well as any of his patients whom you know personally. Of course, in initiating any or all of these possible courses of action, you should be prepared to carry the process through to its conclusion.

However, if you do not conclude such drastic action would be warranted, your present plan seems to me right: to do what you can to encourage Dr. Burns to examine himself and his work, identify what needs correcting, and commit himself to making the changes needed to be better both as a person and as a physician. Your awareness of your responsibility in this matter is commendable; all too many people in such situations think only of getting what they can for themselves rather than helping the erring person and safeguarding others.

Since you have a clear idea of what you should do and are trying to determine how to do it, you will have no difficulty grasping the chief norm that should guide your planning: Proceed in ways most likely to be beneficial to Dr. Burns (see LCL, 231). Flowing from this norm is another: Follow the sequence of steps the gospel recommends (see Mt 18.15–17). Begin by talking personally and privately with the one who seems at fault, involve another or a few others only if necessary, involve the wider community only as a last resort. You acted in accord with these norms in calling Dr. Burns to tell him he had made a mistake and should be more careful, and you still are thinking in accord with them in looking for a way to communicate that message more effectively.

Writing a letter may be the best you can do. But I agree with your husband that, given the doctor’s attitude, a letter probably would not be effective. Face-to-face communication, under conditions that would motivate him to pay attention to your concerns about his patients’ good and his own, seems more likely to work. In trying to bring about such conditions, do your best not to threaten and embarrass him more than necessary. Otherwise he is likely to become more defensive, and obdurately resist self-examination and repentance.

In view of that danger, suing him would be a mistake. As you say, it probably would make him angry and more set in his ways. Besides, almost certainly he has insurance against malpractice suits, and the insurance almost certainly requires him to report even the first threat of a lawsuit to the insurance carrier, refuse to communicate directly with anyone who seems likely to sue, and refer any such person’s attempt at communication to the insurer. A lawsuit probably would make the needed communication impossible.

As you remark, too, no great damage was done, though you suffered two weeks of unnecessary distress and underwent a useless X–ray examination. To some extent, serious damage was avoided because of the nature of Dr. Burns’s mistakes—making an erroneous diagnosis and ordering an inappropriate test. Mistakes like that cause distress and a great deal of waste, but by themselves they seldom kill or seriously injure patients. Consequently, even though he was insensitive and careless, what he did may not have been malpractice as the law understands it. Even if it was, punitive damages probably would not be awarded and compensatory damages would be minimal due to the small amount of actual harm. Probably, then, the only practical legal recourse in this case would be to file in small claims court. Unless you judge that you should use all morally acceptable means to prevent Dr. Burns from carrying on his practice as he has, however, even that might very well impede your purpose rather than serve it.

How could you bring about an effective private admonition—a personal communication that would motivate Dr. Burns to consider your concern for him and his patients and respond as he should? It is questionable whether you can accomplish this by yourself. Having already lost his temper with you and refused to converse, he probably would be no more willing to do so now than to pay attention to a letter from you. However, you may be able to enlist another person to admonish him—someone who can do so effectively.

Consider talking the matter over confidentially with your pastor if you have not already. Since Dr. Burns is a parishioner, the pastor may know a good deal about him. Do not ask him about that, though; instead, tell him, as accurately as you can, what happened and express your concerns for Dr. Burns and his patients. If the pastor shows serious interest in the problem—he should, but may not—you might ask him to try to talk with Dr. Burns, and, if the pastor is willing, you could share with him the memorandum from the California physician. Another possible intermediary would be a professional colleague of Dr. Burns, a nearby physician in a somewhat similar practice. In broaching the matter to such a physician, you could share the California physician’s memorandum and seek advice about the appropriateness of filing a complaint with the local disciplinary body. If the physician urges you not to do that, you might then ask him or her to communicate your concerns privately and informally to Dr. Burns. And, of course, you may know of some other possible intermediary, such as a good mutual friend.²⁸⁴

The way you presented the matter to me also would be adequate, I think, for anyone you might approach as a possible intermediary. If you enlist someone to attempt the task, offer to write a letter to Dr. Burns, which the intermediary at least might use as a resource and might decide to deliver.

Perhaps using an intermediary will not seem feasible, or you will not find one. If so, writing Dr. Burns a letter probably is your best option, even though it offers slim hope of achieving your good purpose. In the letter you might mention that you are not planning legal action and, trying not to give offense, explain your reasons. After describing what happened as you experienced it, you might frame your admonition quite simply, appealing to Dr. Burns as a fellow parishioner to put himself in his patients’ place and do as Jesus commanded: “Do unto others as you would have them do unto you.”

Whether you communicate your concerns to Dr. Burns through an intermediary or, if that is not feasible, by sending a letter, I think you will have fulfilled your responsibility to admonish. If he receives the admonition and takes it to heart as he should, he ought to offer you an apology.

And if you hear nothing? If your inquiry found no evidence of other instances in which he was seriously at fault, let the matter rest, pray for him, and hope for the best. But if you learn of other instances in which people have had serious problems with him, but lack sufficient evidence to convince you he should not be practicing, consider filing a complaint with the appropriate disciplinary body.

If you do that, of course, Dr. Burns is likely to become angry, but he also may be more careful in the future. On the same basis, it seems to me that, if you file a complaint against him, you also might take action against him in small claims court.

284. In some jurisdictions, a governmental agency provides a mediation service, designed to forestall litigation and to settle conflicts for which legal action is not feasible or seems inappropriate; where such a service exists, it might be useful in a case of this kind.