Do Doctors Have a Duty to Inform Patient of Bad Biopsy Results? Chicago Lawyer Lyndsay Markley Says Yes

There have been some new developments in a medical malpractice lawsuit pending in state court in Chicago on behalf of the daughter of Edward Hines, who died of cancer. Plaintiff’s attorney Lyndsay Markley discusses the case in this report, which updates an earlier report on LBN.

Lyndsay Markley

Lyndsay Markley

Markley explains that the lawsuit, in its present form, includes negligence and lack of informed consent claims against Dr. Alan Sadah, a urologist who practices at West Suburban Medical Center in Oak Park, Illinois. The lawsuit alleges that Dr. Sadah failed to inform Mr. Hines of the biopsy results showing that Hines had a malignant tumor. Markley’s contention relies in part on Taylor v. County of Cook, an Illinois appellate court opinion on medical malpractice and informed consent. The crux of the complaint is that the doctor’s failure to inform Mr. Hines of his cancer led to his death because, not knowing of the cancer, he took no steps to seek treatment for it.

Markley says that the importance of her lawsuit is that Illinois law does not directly address what happens when a doctor fails to inform a patient that the patient needs to seek treatment. The typical informed consent lawsuit arises when a doctor performs a procedure on a patient without having told the patient about the risks involved, and then the patient suffers injury or death because of a risk of which the patient was not warned. The informed consent doctrine requires that doctors inform patients of significant risks of a procedure before agreeing to it. Extremely remote risks are not necessarily covered by the doctrine.

The disagreement comes down to the issue of the duty to inform. Dr. Sadah’s lawyers maintain that he had not duty to inform Mr. Hines, but rather that Mr. Hines should have contacted Dr. Sadah to inquire about the results of the biopsy. Markley believes that the law should take the position that a duty to inform exists in situations like that of Mr. Hines where he has a life-threatening condition, one for which any reasonable person would seek treatment if informed of the condition.

In fact, says Markley, Mr. Hines was given the impression that he was cancer free. The complaint alleges that, following a tumor resection surgery on Mr. Hines, Dr. Sadah stopped by Hines’s room and said, “It’s benign. You’re cancer free. I got it all” Hines shared this with his family and went on to deal with other health issues, going a year with any attempt to treat the cancer. Unfortunately, Markley says, the biopsy that was available on the date of his discharge showed a malignancy. Dr. Sadah’s contention is that, even if the conversation took place as alleged, he had no duty to contact Mr. Hines about the biopsy.

According to Markley, the defense theory is that Mr. Hines had a duty to contact Dr. Sadah and inquire about the test results. That position does not seem to be a popular one with the doctors and medical experts Markley has talked with. Three phone calls and a certified letter are not uncommon precautions for a doctor to take in dealing with a patient when tests have disclosed a serious health problem.

Chicago-based Attorney, Lyndsay Markley, has dedicated her legal practice to fighting on behalf of persons who suffered injuries or death as the result of the wrongful or careless conduct of others. For her work as a victims’ advocate, Ms. Markley has received an array of accolades, including selection to the Top 100 Trial Attorneys in Illinois and a Top 40 Under 40 Trial Attorney for 2012-2014 by the National Association of Trial Lawyers. She has also been acknowledged by her colleagues as an Illinois’ Rising Star in 2013 -2014 (SuperLawyers’ Magazine) and as a Top Women Lawyer in Illinois in 2014 by Super Lawyers and Chicago Magazine. Lyndsay's commentary was hosted by The Legal Broadcast Network, a featured network of Sequence Media Group.