As a nurse practitioner in an obstetrics and gynecology clinic, one of Ms. D’s duties is to sort through and review mammogram results, making sure that her supervising physician sees the appropriate films. On this occasion, a 46-year-old woman was referred to the clinic for examination of a breast lump. After Ms. D prepared the chart and took a history, the supervising physician examined the patient, ordered a diagnostic mammogram of the lump, and told the woman, “We’ll get back to you with the results.”
The patient left the supervising physician’s office and crossed the hallway to the mammography clinic, which was run by a national company. The mammogram was sent to a neighboring state, where a radiologist read it as “normal” and sent the film back to the mammography office along with the report. From there, it was sorted by the technician. According to office protocol, all films ordered to investigate a potential abnormality were to be reviewed by Ms. D’s supervising physician, regardless of the radiologist’s assessment. Routine screening films were reviewed only if they were deemed abnormal by the radiologist. The clinic receptionist filed all “normal” films with their report in the chart (if the receptionist was not available, Ms. D filed them). It is not certain how the mix-up occurred, but the patient’s diagnostic mammogram was placed in the pile reserved for screening mammograms. Because it was reported as “normal,” it was filed in the patient’s chart, either by Ms. D or the receptionist instead of going to the doctor. Later, the supervising doctor testified that even if the results of a diagnostic mammogram of a breast lump had been reported as normal, he would have recommended biopsy. Instead, the patient was notified of her results, and the lump remained undisturbed and continued growing.
Eight months later, the patient returned to the clinic to report that the lump was larger. The physician took one look and ordered another mammogram as well as a surgical consult. Biopsy revealed invasive adenocarcinoma, and further investigation showed that the cancer had metastasized to the bones, lungs, and brain. The patient underwent radiation, chemotherapy, and even a bone marrow transplant, but her prognosis was less than one year. On hearing this devastating news, the patient scheduled an appointment with a malpractice attorney to discuss a lawsuit against Ms. D’s supervising physician and the mammography company. The plaintiff’s attorney called for the chart and began preparing the case.
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The lawsuit moved from discovery and the exchange of documents and medical records into the depositional phase. The patient testified that she had received a letter from the clinic telling her that the mammogram was normal. Not unreasonably, she assumed that there was nothing to worry about. Her primary concern was for her husband and three children, who would soon have to get along without her.
Ms. D’s supervising physician testified next. He told the court that the records mix-up was not his fault. The mammography service had mistakenly placed the woman’s report with “routine normals,” which do not require follow-up. A representative from the mammography service, in an effort to shift the blame back to Ms. D’s supervising physician, produced a contract in which the physician agreed to supervise the mammography technician. Furthermore, according to the representative, the physician had set up the filing system to satisfy his own requirements.
As expected, expert testimony was divided and provided contradictory accounts of the standard of care. The plaintiff’s experts testified that regardless of the results of the mammogram, the patient needed a diagnostic biopsy for an early cure and had missed that opportunity due to the misfiling of her report. In her brief deposition, Ms. D reported that she could not remember whether she or the receptionist had filed the actual mammogram results instead of passing them on to the physician for follow-up.
The case went to trial one year later, and the witnesses repeated their testimony. Ms. D’s supervising physician was overcome with guilt and remorse at seeing his patient in the last stages of disseminated breast cancer and tearfully confessed on the stand that his mammogram follow-up policies were defective. The defense tried to make the point that it was the mammography company’s responsibility to ensure the report got into the right hands and not into the “normal routine” pile. The jury retired to discuss the case and returned with a verdict of $33 million against the mammography company and Ms. D’s supervising physician. Of the total award, $150,000 was for medical bills and the rest was to cover non-economic damages, such as pain and suffering and loss of consortium. The award was limited by a confidential high/low agreement, which had been negotiated while the jury was meeting to determine the verdict.
Legal background
Tort reform has made cases of this type less common. Plaintiff’s lawyers are often reluctant to take on cases that have few medical bills, minimal lost wages, or other minor economic losses since awards for non-economic damages are limited in many states (typically to $250,000). Pennsylvania, where this case took place, is an exception. An active plaintiff’s bar and provisions of the state constitution have weakened tort reform. This case illustrates how a tragic situation can be translated into a record megaverdict by a successful plaintiff’s lawyer.
Risk-management principles
Malpractice suits frequently arise due to simple errors of communication rather than some arcane missed diagnosis. Jurors may have trouble slogging through the complexities of such conditions as autoimmune disorders, but most can understand losing or misfiling paperwork. Nevertheless, jurors typically hold providers to a higher standard and are generous in their compensation when those standards are violated. Clinicians need to work with office systems that utilize checks and balances as well as automated reminders to ensure that routine reports are not lost. Patients should be encouraged to participate in this endeavor. Many clinicians ask patients to call the office on a set day for their results. When applied routinely, this ensures that if a report is lost due to misfiling or some other glitch, there is an automatic reminder in the form of an involved patient.
Clinicians may be asked to act as medical directors or supervisors of private services, as was the physician in this case, who signed a contract with the neighboring mammography service. Although such an offer may seem like easy money, this physician had his written agreement thrown back in his face by the jury when it came time to assign blame for the misfiled report. While acting in such a capacity, there is a temptation to allow the employees and staff to run the operation, but the clinician should at least keep an eye on things as a safeguard against a tragic situation. Ideally, this would include reviewing and approving the administrative and filing practices of the staff.
