Medical Errors & Lessons from the Courtroom: Gardner’s Syndrome and the Case of the Remaining Rectum

James Stark, MD, of Stark Oncology

James Stark, MD, of Stark Oncology Consulting

A fifty-three year-old man entered the office of his family physician complaining of rectal bleeding.  He was born with Gardner’s Syndrome (GS).  This condition is inherited as an autosomal dominant (if either parent has it you have a 50% chance of getting it) and is life-altering.  By age twenty you will have developed hundreds to thousands of colon polyps.  By the time you are 45 you have a 90% chance of getting colorectal cancer and if you don’t die of something else a 100% chance of eventually getting it.  Patients with GS get other cancers and benign tumors as well but not as often as colorectal cancer.

At age thirty his local surgeon did a subtotal colectomy and ileo-proctostomy.  With that operation his entire colon was removed except for his rectum; the end of his small intestine was then hooked up to his rectum.  He underwent annual examinations of his rectum thereafter with a proctoscope because it was at risk for the development of cancer.  The only reason the rectum was not removed was that he would have needed a permanent colostomy and he did not want one.

For the four years prior to this visit his surgeon had removed polyps from his rectum each time he was scoped.  The last two times the polyps had dysplasia, or pre-malignant changes.  The surgeon and our patient discussed again the desirability of having his rectum removed but the patient still did not want a colostomy.

During these conversations the surgeon never mentioned that at a university teaching hospital a hundred miles away surgeons were capable of hooking up the distal small intestine to the anus (the very last portion of large intestine, which is not at risk for developing cancer because the lining cells are different from those of the remainder of the intestinal tract) and leaving the patient with a way to have bowel movements without needing a colostomy.

At the visit with the family doctor he was referred back to his original surgeon who scoped him again even though a full year had not passed since the last procedure.  In the remaining rectum there was a large cancer.  He then went to the university hospital and had the rectum removed and the small intestine hooked up to the anus.  Unfortunately a year after this was done he developed metastases to his liver and eventually died.  His family sued his surgeon for not having removed his rectum years earlier.

Would earlier diagnosis have made a difference?

The question that always comes up in cancer litigation is whether an earlier diagnosis would have made a difference, i.e., preventing metastasis. This can be difficult to determine if the delay is relatively brief, say less than a year.  When cancers shed cells to distant organs, the growth rate of tumors in those organs is not well known.  The literature to support any opinion about how fast metastases grow and when they first develop is sparse.  New techniques of gene analysis of tumors have thus far not shed any light on the problem.  Experts argue in court over these issues, often rendering opinions without substantial support from the literature.

In this case the issue was easy to resolve. Our patient should have had his rectum removed from the beginning.

Alternatively, and less ideally, as soon as his rectal polyps began showing dysplasia, he should have had it removed. Had it been removed years earlier it could not have developed cancer. Had it been removed when the polyps began looking abnormal under the microscope, he still would not have developed cancer. It was surprising that the cancer grew to its size in less than a year – and surprising that it had already sent malignant cells to his liver – but it did, and it cost the patient his life.

At the trial of his surgeon, experts on behalf of the now deceased patient explained all of this to the jury.  They made a compelling case that our patient did not need to die of rectal cancer.  Experts on behalf of the surgeon testified that the rarity of GS and the community standard – an operation to remove the rectum – trumped the surgeon’s obligation to refer the patient to a tertiary-care university hospital. They admitted under cross examination that the patient should have been better informed on his increased risk of cancer once the polyps began to show dysplasia. The jury found in favor of the doctor and awarded the family of the deceased no money.

When questioned after the verdict, the jurors refused to elaborate on their decision. Usually they are willing. The plaintiff’s lawyer has since speculated that they liked the surgeon and were grateful for his decision to work in their small rural community rather than in a big city; but he never found out why they rendered the verdict for the doctor.

What can we learn from this case?

First of all, based on what is known about the natural history of GS, a robust plan to deal with the rectum is essential. Given the improvements in the technique of sewing the distal small bowel to the anus, the surgeon should be prepared to perform this operation or find someone who can. Appropriately trained community surgeons can do this today with minimal morbidity.  Surgeons who were trained before this operation came into widespread use have an obligation to know about it, if not actually perform it.  The alternative plan – to continue to monitor the retained rectum with removal only after polyps develop dysplasia – is clearly second best, but better than no plan.

How the juries function in complex malpractice cases is another matter.  The jury system depends on the ability of the average person to sort through the verbal jousting of disputatious expert witnesses.  In some cases the system is overwhelmed by complexity.  As a testifying expert I try to keep it simple.  Sometimes this just isn’t possible.  The concept of “a jury of one’s peers” is tested in highly technical litigation.  In addition and as a separate issue, I know of at least one juror, not in this case, who expressed after a verdict the concern that if the doctor lost he would relocate, leaving a small community without its only specialist.  Hence he voted for the doctor, even though in that case the negligence was clear cut.

I believed strongly that our patient’s life was unnecessarily lost by a doctor who hadn’t kept up.  Others disagreed.  The medicine spoke for itself.

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Dr. James Stark is the founder of StarkOncology, where he practiced Oncology in Hampton Roads for thirty-four years.  He is now a health-care consultant specializing in topics such as breast cancer, colon cancer, lung cancer, chemotherapy complications, and failure to screen. In addition to this new venture he continues to serve as Professor of Medicine at Eastern Virginia Medical School.

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