When the biopsy result turned out to be a false positive, the patient took aim at all of her doctors.

Dr. F, 32, had worked for about a year in a rural family practice in the Southwest. One day he met a new patient, who turned out to be extremely anxious about developing breast cancer.

The 49-year-old woman had a family history notable for breast cancer; her personal history included chronic fibroadenosis of both breasts. She had visited many clinicians over the years and had undergone multiple biopsies.

When Dr. F examined her, he discovered a vague lump in the upper outer quadrant of her left breast. He told her that it was probably a benign breast mass associated with fibroadenosis. Because of her obvious anxiety and the possibility of malignancy, he recommended either a wait-and-see approach with a review in a month or a mammogram and subsequent treatment. After 24 hours of weighing the alternatives, the patient decided on the mammogram.

That study was indeterminate, revealing a “suspicious area of probable increased fibrosis in the vicinity of the mass,” which measured approximately 1.0 cm × 1.0 cm. Dr. F recommended consulting a breast surgeon.

Again, the patient was intensely anxious. She was fearful about going to a surgeon and fearful about not going to one. In the end, Dr. F referred her to Dr. B, a surgeon known for his skills in dealing with nervous patients.

Dr. B performed a needle biopsy and spread the specimen on a slide the usual way. A pathologist, Dr. P, read the slide as low-grade adenocarcinoma. While Dr. P had the slide projected on a screen, his partner happened by and remarked, “Looks like a bad one.” That comment was to play a pivotal role in the subsequent malpractice case.

Based on Dr. P’s report, Dr. B recommended a lumpectomy because of the extremely localized nature of the lesion and the lack of apparent spread. After some agonizing, the patient agreed and underwent the lumpectomy and primary closure a week later.

Microscopic examination of the lump showed dysplastic cells related to fibroadenosis. There was no carcinoma, as originally thought. This led to an embarrassing round of phone calls among the three physicians.

When Dr. B gave the patient the news, she went straight to a plaintiff’s lawyer, asking him to “sue all the doctors.” The lawyer was delighted. He called for the charts and soon received a report from an expert pathologist, who concluded, “Any clinician could tell this was not cancer.”

Dr. F, Dr. B, and Dr. P were served with papers announcing a lawsuit for causing the patient severe emotional distress as well as physical injuries. Those injuries were not detailed, but the woman later testified that she was unable to return to work because of “severe nerve damage to her left breast.”

At depositions, the patient explained in detail how the false-positive cancer diagnosis had ruined her life. She described her anxiety when the needle biopsy had shown breast cancer and her continuing disability from the damaged nerve.

On cross-examination, the defense lawyer gave her a chance to air her grievances, and the patient made full use of the opportunity. Later, the attorney used that testimony to make the woman appear neurotic and overreaching.

Dr. F testified next. Using his electronic notes, he described every discussion he had had with the patient. It soon became apparent that there was little or no case against him.

Next, it was Dr. B’s turn, with a similar result. The surgeon relied on transcriptions of his dictated notes to reconstruct events and to justify the patient’s decisions in terms of the information he had presented to her. He asserted her “nerve injury” was “anatomically impossible” because her brachial plexus symptoms were in an area far from the lumpectomy site.

As Dr. P began to testify, the tone of the proceedings changed. The plaintiff’s lawyer challenged the pathologist’s experience, training, and credentials before charging that his reading of the needle biopsy was “inadequate and substandard.”

Dr. P admitted he had made a mistake. But, he argued, any pathologist would have done the same because the cells looked malignant on the slides. He even noted his partner’s passing comment.

However, the plaintiff’s expert flatly stated that “the cells were obviously benign” and the specimen should never have been read as cancer. The economist who followed valued the patient’s lost past and future earnings at more than $1 million.

At this point, the depositions ended and settlement negotiations began. At first, the plaintiff’s lawyer sought $25,000 from both Dr. F and Dr. B. When their insurers balked, he dropped the case against them.

The lawyer then offered to settle the case against Dr. P for $750,000. Those negotiations also failed, and the case headed for trial. After eight hours of deliberations, the jury vindicated Dr. P as well.

Legal background

Dr. F isn’t the first or last physician to find himself in a lawsuit that only peripherally involves him. Including multiple physicians as defendants has many advantages for the plaintiff’s lawyer. First, it forces the physicians to testify in a case where they might not be willing to participate as witnesses.

The strategy can induce physicians to testify against each other (“it wasn’t me, it was him”) or to demand that their insurance companies settle out of court, thus providing the plaintiff’s lawyer with ready cash to spend against any defendants remaining.

Last, when multiple physicians testify at depositions, there may be enough discrepancies to convince a jury that the physicians are conspiring to cover up the truth.

Protecting yourself

The defendants in this case presented a united and professional front. Despite much opportunity and the best efforts of the plaintiff’s lawyer, they refrained from blaming each other for the error and its consequences. Rather, they adopted a “right actions, wrong diagnosis” defense.

Dr. B advocated a “when in doubt, take it out”policy. Removing the lump was necessary to be certain it was not malignant, he said. The histopathologic diagnosis increased the urgency, despite the inherent risk of a false-positive result.

Dr. B and Dr. F were dismissed from the case when their ability to reconstruct visits from their clinical notes demonstrated that there was no cause of action against them. Dr. P defended his reading of the slide by arguing that established criteria would have led him to read it as malignant, even in hindsight. The jury accepted his explanation, deciding that no negligence was evident in his actions.

 

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.