Mr W’s widow decided to check with a plaintiff’s attorney to determine if she might have a legal case against Dr R. The attorney hired a medical expert to go over the patient’s records. After doing so, the expert was very critical of Dr R.

“The physician had a patient who admitted to having had hepatitis B. But the doctor seemed to have assumed that the hepatitis was resolved, and never ordered further testing to determine if the patient had chronic hepatitis B. Chronic infection of hepatitis B can be asymptomatic,” said the expert, “but patients with chronic infection must be monitored for liver cancer because the risk is so much greater.”

The attorney listened intently as the expert explained that Mr W had, in fact, been positive for chronic hepatitis B, and should have been watched closely for signs of liver cancer. The expert also informed the attorney that patients who are born in any Asian country should be tested for hepatitis B with the Hepatitis B surface antigen test, because people from those countries make up a very high percentage of hepatitis B cases. The attorney told his client that they had a case, and he filed papers against Dr R.

Dr R blamed himself for not appreciating the significance of hepatitis B on the patient intake form all those years ago. When he met with the defense attorney provided by his insurance company, he told her “I just want to settle this. I don’t want to fight. I’m going to have to live with myself after this.” After reviewing the case with her medical expert, the attorney agreed. The case was settled out of court for an amount within Dr. R’s insurance policy.

Legal Background

Knowing when not to go to trial, is as important as knowing when to. Even in the best of circumstances, a medical malpractice case will be extremely costly and time consuming. In worse scenarios, cases can drag on for years, throwing a long shadow over a practitioner and his/her medical practice.

When physicians are being represented by insurance companies, the attorneys assigned by the insurance companies to defend the physicians often have their own opinion about whether a case should be settled or not. (And that opinion may be based on which outcome the attorney feels will cost the insurance company less.)

Dr R’s only real option at trial would have been to attempt to argue that the patient’s cancer was so aggressive that even earlier detection would not have changed the outcome. However, neither the physician nor his attorney viewed that as a good or viable option, leaving settling as the best choice.

Protecting Yourself

People from Asian countries suffer disproportionately from hepatitis B. In the United States, the incidence of liver cancer in Asian Americans with hepatitis B is two times greater than in non-Hispanic whites.1 Liver cancer and mortality rates are particularly high among Asian American males.

Knowing that Mr W was born in an Asian country should have been enough to trigger Dr R to order a Hepatitis B surface antigen test, even without the patient telling him that he’d had the disease in the past.2 Had he ordered a test upon his first meeting with the patient, he could have determined whether the infection was chronic. With the knowledge that it was a chronic infection, Dr R should have been carefully monitoring the patient for development of liver cancer. Instead, year after year went by without any testing for hepatitis B or any screening for liver cancer.

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1) Henry J. Pollack, Simona C. Kwon, Su H. Wang, Laura C. Wyatt, Chau Trinh-Shevrin and on behalf of the AAHBP Coalition; “Chronic Hepatitis B and Liver Cancer Risks among Asian Immigrants in New York City: Results from a Large, Community-Based Screening, Evaluation, and Treatment Program”; Cancer Epidemiol Biomarkers Prev November 1 2014 (23) (11) 2229-2239; DOI: 10.1158/1055-9965.EPI-14-0491

2) Testing Asian Americans and Pacific Islanders for Hepatitis B: