Communication, or more commonly the lack of it, is the root cause of a large percentage of medical malpractice cases. Particularly these days when many different clinicians may be involved in the care of one patient, clear and consistent communication is essential. 

In this month’s case, a breakdown in communication among a variety of practitioners resulted in a poor outcome for the patient and a lawsuit against the facility. 

Ms. Y, aged 47 years, was a nurse practitioner working at a clinic that provided care for service members and their families on a U.S. military base. Ms. Y had been employed there for several years and greatly enjoyed the work, mainly because the clinic relied heavily on nurse practitioners and physician assistants, therefore giving her a high level of responsibility and direct contact with patients. 

Continue Reading

One such patient was 39-year-old Mrs. B, an officer’s wife and mother of two young children. Mrs. B came in to see Ms. Y one day, concerned about two small lumps she’d found, one in each breast. “I was doing one of those breast self-exams that you’re supposed to do regularly,” the patient told Ms. Y, “and I felt them.”

Ms. Y was able to confirm the presence of the approximately 1-cm lumps, and she ordered a bilateral diagnostic mammogram and ultrasound for the patient. The studies were scheduled for three weeks later. The start of the communication breakdown came shortly afterward.

The radiologist who read the mammogram determined that the findings were suggestive of malignancy due to the palpable solid masses, despite the fact that the mammogram and ultrasound did not indicate whether the masses actually were malignant. 

He showed it to the head of mammography services, who wrote a letter to the patient suggesting that she follow up with her primary-care provider and get a referral to a surgeon. However, that letter was never sent to the patient or to Ms. Y, and instead was misfiled. Ms. Y never followed up on the patient’s results.

Five months later, having heard nothing from Ms. Y or the radiologist, Mrs. B returned to the clinic. This time she was seen by another nurse practitioner who ordered another bilateral diagnostic mammogram and ultrasound.

For reasons that remain unclear, that order was later canceled and revised so that only an ultrasound was done, and only for the patient’s left breast. A different radiologist interpreted the ultrasound results and said that the mass in the left breast was benign. Again, Mrs. B was never notified of the results.

Neither Ms. Y nor the second nurse practitioner ever checked on the original mammography results. Another several months passed and Mrs. B returned yet again to the clinic, having heard nothing. This time a mammogram suggested that the lump in her right breast was malignant, and a subsequent needle biopsy revealed infiltrating ductal carcinoma.

The lump in Mrs. B’s right breast was now between 5 cm and 7 cm in size and was characterized as stage 3, triple-negative cancer. Mrs. B required 12 weeks of chemotherapy, which only reduced the tumor to 2 cm. At least two lymph nodes were also now involved. In addition to the chemotherapy, Mrs. B underwent a double mastectomy and the removal of 21 lymph nodes, followed by breast-reconstruction surgery. 

Mrs. B consulted with a plaintiff’s attorney and sued the government (as it was a military clinic), alleging that medical providers at the clinic were negligent, failing to diagnose her breast cancer in a timely manner. At trial, Mrs. B’s treating physician testified that when she presented to the clinic after having first discovered the lumps, it was likely that the cancer was stage 1 and had not metastasized. 

The physician stated that had the cancer been diagnosed at the time, it would have been far less aggressive and easier to treat. “Instead of a mastectomy,” said the witness, “Mrs. B would only have needed a lumpectomy.”

The physician also testified that although Mrs. B still would have needed chemotherapy with an earlier diagnosis, the course would have been shorter, and the drugs used less toxic. He explained that patients who have triple-negative breast cancer, and those with a large tumor and lymph node involvement, have a much lower survival rate. “There is a 60% chance that her cancer will return in 5 to 7 years,” stated the witness. “If it does recur, it is very likely to be fatal.”

Mrs. B testified to the pain and suffering she had endured as a result of the chemotherapy, mastectomy, and breast reconstruction. She told the court that she had developed lymphedema of her arm as a result of the lymph node removal.

The clinic had no viable defense and limited its arguments to the issue of damages.

After a bench trial, the presiding judge found the government liable and awarded Mrs. B and her husband more than $5 million in damages. In its decision, the court wrote that “failures were widespread in timely diagnosing and treating the patient’s breast cancer. 

Had the medical providers not squandered opportunities, early diagnosis at stage 1 would have occurred, breast conservation probably would have been accomplished, and unnecessary surgery would not have been done.”

Legal background

Because the clinic was a government-run military clinic, the United States itself was sued under the Federal Tort Claims Act (FTCA). The FTCA allows private parties to sue the United States in federal court for most torts (which is what medical malpractice/negligence is) committed by people acting on behalf of the United States. All of the medical practitioners working at the clinic, including the two nurse practitioners and the radiologists, fell into that category. 

This explains why the case was in federal court and why the practitioners were not sued individually. 

Protecting yourself

Although Ms. Y and the other practitioners were not sued individually, there is no telling what effect the lawsuit had or will have on their employment or future, not to mention the fact that they will have to live with the knowledge that their carelessness caused harm to their patient. 

This situation could have easily been prevented if Ms. Y had followed up on the results of Ms. B’s mammography. Even if she hadn’t done so, the cancer still would have been diagnosed earlier if the second nurse practitioner had looked into the first mammogram or had followed up on the second set of studies. 

Just because a patient leaves your office does not mean that you are done helping that patient. Follow-up, including looking for results of tests that you have ordered, is essential. Ms. Y and the other clinicians treating Mrs. B failed the patient miserably, and their employer (and unfortunately the patient herself) had to pay the price.

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