When a breast discharge turns out to be cancer, a woman claims clinicians should have pushed for more visits and tests.

Ms. N, 45, worked for a family practice clinic in a large West Coast HMO. She enjoyed the variety of patients, the clinic’s resources, and her professional autonomy as a nurse practitioner. But a dispute over the recommendation for a follow-up visit resulted in a malpractice suit.

The woman was 32 years old and presented with a clear discharge from the right nipple. After examining her, Ms. N consulted one of the clinic’s eight family physicians by telephone. He recommended testing the patient’s prolactin and thyroid-stimulating hormone (TSH) levels, as well as treating her with cortisone 1% cream. Ms. N later recalled asking the woman to return to the clinic in a week to discuss her test results and progress, but the NP did not make a note in the chart. The plaintiff’s lawyer was to repeatedly point to this oversight in the subsequent lawsuit.

When the patient’s test results came back, another NP in the practice called her and told her they were normal. The woman did not make a follow-up appointment (as Ms. N said she had counseled) but did return to the clinic a year later complaining that the breast was discharging more fluid more frequently.


Continue Reading

A third NP examined the woman, took a sample of the fluid, and forwarded it for histologic analysis. The report was inconclusive, but it indicated that because of “insufficient material, malignancy cannot be excluded.” This NP then ordered a mammogram, which showed “no changes consistent with malignancy.” The plaintiff’s expert would later dispute that opinion.

The patient was then referred to a surgeon, who ordered a sonogram. It, too, was read as showing “no suspicious changes.” At this point, the surgeon recommended a breast biopsy. According to his chart notes, the patient refused, but when she filed her lawsuit, the woman claimed this recommendation had not been made.

A month later, the woman saw the surgeon again, still complaining of the same discharge despite treating the nipple with cortisone cream. This time, the surgeon recommended she stop her birth control pills. When the patient returned six months later, he suggested another mammogram. The films showed a large subareolar area that was “suspicious.”

This time, the patient underwent a biopsy, which showed infiltrating intraductal carcinoma. She was referred to a breast surgeon, who performed a simple mastectomy and breast reconstruction in two operations. She also underwent adjuvant chemotherapy, although biopsy showed the right axillary lymph nodes to be negative.

After all this, the patient’s oncologist gave her an 80% chance of five-year survival and released her from treatment. She immediately consulted a plaintiff’s lawyer, who filed a suit against Ms. N, the HMO clinic, and the original surgeon for delayed treatment and misdiagnosis.

The case began with paper discovery, and the defendants made the patient’s complete medical records available to her attorney. During the ensuing depositions, the woman denied that Ms. N told her to make a follow-up appointment after her initial visit and that the surgeon had recommended the earlier biopsy.

When the defense lawyer challenged her story, the woman found herself on firm ground against Ms. N. The HMO chart said nothing about a follow-up recommendation. The surgeon’s chart, however, included a notation: “Adv biopsy, pt ref.” This meant that he had advised a breast biopsy and that the patient had refused, he explained. Nevertheless, the plaintiff’s lawyer hammered away at the surgeon, looking for alternative or ambiguous readings of those notations.

At her deposition, Ms. N insisted that she always asked patients to return to the clinic if they had an unresolved problem, especially one with such significant overtones as a nipple discharge. She swore that she had followed that procedure with this woman. But the plaintiff’s lawyer attacked her. “If it isn’t in the chart, it wasn’t done,” he asserted. Ms. N refuted that notion, stating “there isn’t enough room in the chart to contain everything that we do and say.”

The case eventually settled for $250,000. Ms. N became the clinic’s most assiduous charter, often falling behind schedule with patients as she made her notations complete.

Legal background

“If it isn’t charted, it wasn’t done.” That’s a common adage in risk management, but it has no legal basis. Still, many plaintiff’s lawyers try to make jurors think it does. With today’s hectic clinical environment, such attention to detailed charting is unrealistic. Defense lawyers must be prepared to counter this assertion through their own witnesses.

In this case, Ms. N was adamant about advising the patient to return, even though the recommendation was not recorded. Her testimony was actually made more credible by the patient’s assertion that the surgeon had not recommended the earlier biopsy, despite his documentation of that conversation.

Much of a plaintiff’s lawyer’s strategy during depositions is to raise as many doubts about clinicians’ actions as possible in order to increase the value of any eventual settlement or award. A defense lawyer’s duty is to put forward counterarguments to reduce that value. In this way, lawyers at proceedings like depositions prepare for an event that probably will occur (arriving at a settlement) by appearing to prepare for an event that probably never will (going to trial).

Protecting yourself

The complete documentation that some risk-management experts advocate is impossible in today’s hurried clinical setting. Nevertheless, adequate charting should always mention the major features of a clinical visit, including all follow-up recommendations.

Most jurors will tolerate the use of abbreviations and acro-nyms in clinical notes. The cross-examination during the surgeon’s deposition here illustrates the difficulty that this can cause by allowing an attorney to posit alternative interpretations of cryptic notes. Computer programs and electronic medical records hold promise for more uniform charting that will be immune from plaintiff’s lawyers’ attacks.

As health care becomes increasingly fragmented, effective communication becomes increasingly problematic. In this case, Ms. N was not the NP who called the patient with the tests results after her first visit. If she had been, she might well have reminded the woman to come in for her follow-up— whether or not that suggestion was noted in the chart—and thus avoided the whole series of events that followed.

Fragmentation of care is a systemwide problem with no easy solution. One tactic is to give patients clear, written instructions at each visit. Another is to institute a tickler system for scheduling return visits, with reminder calls to patients both before an appointment and after a missed follow-up. Such systems are often automated, and large clinics and practices are increasingly using them.