As a nurse practitioner in a breast clinic affiliated with a large hospital, Ms. F was accustomed to getting referrals. A high percentage of the clinic’s traffic was comprised of in-network referrals as well as routine screenings. More often than not patients were referred with an accompanying phone call, but sometimes a note from the referring clinician would filter down. Nevertheless, Ms. F was always careful to take detailed notes on new cases and conduct comprehensive interviews with patients. 

On this particular afternoon, 21-year-old 
Ms. K, who had been seen in the hospital’s family planning clinic, was sent to the breast center. A lump had been detected in her left breast. Ms. K had a family history of breast cancer that made the lump a cause for concern. 

Notes from the initial exam confirmed a “soft, nontender, 2 x 3 cm, cystic mass in the left breast.” The referring nurse wanted the mass evaluated, explaining that the patient’s mother had died of breast cancer. 

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Before examination, Ms. F reviewed the personal medical history Ms. K provided and then chatted with her young patient at length about her family history. According to Ms. K, her mother had developed breast cancer in her early 50s and died just before reaching age 60 years. Ms. K had no aunts on her mother’s side and did not know her maternal grandmother’s cause of death. There was no history of breast cancer on her father’s side. Other than the appearance of this lump, 
Ms. K’s medical history was normal, with only minor illnesses reported. 

Ms. F carefully added the information to the patient’s chart and then conducted a thorough physical exam. She noted that Ms. K’s breast condition was a bilateral nodularity with no definite masses or nodes. Furthermore, the positive left axillary lymph node moved freely. There was no nipple discharge from either breast. Ms. F recorded that the patient denied having any breast pain or noticing any recent changes to her breasts.

After the examination, Ms. F consulted with one of the clinic physicians, per established policy. Despite the negative findings, the patient’s maternal history suggested the need for follow-up to monitor the mass. The physician read 
Ms. F’s notes and agreed with her assessment. 

“While it’s not uncommon for women to have lumps in their breasts,” Ms. F told the patient, “in a situation where there is a family history, this is worrisome. It is extremely important that you routinely examine your breasts for changes. You will need to come back, as we need to monitor the situation. There is a very high correlation between family history and the development of breast cancer.”

Ms. F then showed Ms. K how to conduct a breast self-exam and gave her appropriate literature, with explicit instructions to return for a follow-up evaluation in three months. Ms. F again stressed the importance of not ignoring family history. Ms. K said that she would return for her follow-up appointment, but she never came back. 

Three years later, while pregnant with her first child and seeking prenatal care, Ms. K told her obstetrician, Dr. H, that she had been experiencing some breast pain. Dr. H asked about her family history. Once he learned that Ms. K’s mother had died of breast cancer and that a lump had been previously detected in her own breast, he ordered a mammogram following the birth.

The mammogram results were suspicious, and a subsequent biopsy revealed that Ms. K had breast cancer that had metastasized to her neck and arm. A mastectomy was performed and followed by a course of radiation and chemo-therapy. The treatment was unsuccessful, however, and 
Ms. K died within the year at the age of 25 years.

Her distraught family remembered that Ms. K had gone to the breast clinic for an evaluation. They contacted a plaintiff’s attorney, who took on the case. A lawsuit was subsequently initiated against Ms. F and the clinic physician who signed off on Ms. K’s case. 

Ms. F was stunned when she was notified of the lawsuit. At this point, she barely remembered the patient, but a quick perusal of the records showed that Ms. K had never returned after the initial visit. Ms. F met with the defense attorney provided by her insurance company.

“It’s an unfortunate situation,” remarked the attorney. “You clearly did nothing wrong here, but the plaintiff’s attorney probably believes that a jury would be sympathetic in this case considering the age of Ms. K at the time of her 
death — and the fact that she left a baby behind.”

The counselor assured Ms. F, however, that his plan was to file a motion for summary judgment — in other words, to ask the judge to dismiss the case before it went to trial. 

“With any luck,” said the attorney, “this case will never reach a jury and we won’t have to worry about the sympathy issue.”

The case went through the discovery process and Ms. F took time off from work to give a deposition. Once the discovery process was complete, the defense attorney filed a motion to dismiss and the judge granted it.

Legal background 

In order for a judge to consider a motion for summary judgment, the issue has to be one of law, not one of fact. In this case, both sides agreed on the facts of what had happened. The question left to be decided was whether Ms. F and her supervising physician had been negligent in their treatment of the patient. After reviewing the facts — and Ms. F’s especially well-documented notes — the judge declared that no malpractice had occurred and the case was dismissed.

Protecting yourself

This case serves as a reminder that protecting yourself from liability doesn’t always mean protecting yourself from being sued. Ms. F acted appropriately in her treatment of the patient and thoroughly documented all in the patient’s chart. But even this could not protect her from being subjected to a lawsuit and the accompanying stress. Had Ms. F not had solid malpractice insurance provided by the hospital, she could have been responsible for her legal fees.

Frivolous lawsuits are an unfortunate reality in the medical profession. Although you might not be able to avoid them, you can protect yourself from being found liable by documenting everything and keeping meticulous notes about interactions with patients, as Ms. F did. 

In this case, Ms. F recorded her instructions to the patient to follow up in three months time. She further advised Ms. K that careful monitoring of her breasts was a necessity. Finally, she warned Ms. K about the connection between family history and propensity for breast cancer. And because Ms. F had documented everything, she was not held liable.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.