Our client was an Ob-Gyn accused in a California Medical Board accusation of negligently failing to ensure that a patient with symptoms of possible breast cancer sought an evaluation from a specialist.
The patient had presented to the physician on several occasions and was told multiple times she had a suspicious lump on her breast that needed to be examined and biopsied by a surgeon. The patient ignored these admonitions for a period of several months. The patient then consulted a cosmetic surgeon regarding breast implant surgery and the attendant breast examination revealed a possible tumor. A biopsy was positive for cancer. The patient was treated surgically and recovered; however, she filed a civil action against the Ob-Gyn and another treating physician. The civil case against our client settled, but the Medical Board thereafter filed an accusation.
Our client was able to produce substantial evidence in terms of patient records that supported her contention that the patient had in fact been adequately advised of the likelihood of breast cancer and had ignored her physician's advice. In addition, review of the Medical Board's expert witness report revealed that the expert had erroneously relied on general educational publications of the American College of Obstetricians and Gynecologists (ACOG) to determine the standard of care, which the expert opined had been violated. In fact, ACOG itself disclaims that "These guidelines should not be construed as dictating an exclusive course of treatment or procedure. Variations in practice may be warranted. . .". The ACOG publication(s) do not represent the standard of care. In addition, the Board's expert had only an extremely limited practice and served primarily as an expert witness for Medical Board cases, rather than treating patients on a daily basis.
Our own expert reviewer conducted a comprehensive review of the client's records and treatment record and determined that no deviation from the standard of care had occured. We communicated this information, including our expert's report, to the Deputy Attorney General assigned to the case. After consultation with the Medical Board's executive staff, the accusation was withdrawn.