Dr. B is a senior general surgeon with considerable experience in the diagnosis and treatment of carcinoma of the breast. Throughout his career, he had noted the tendency of breast cancer to occur in families. He always advised close relatives of his patients to undergo regular checkups and perform self-examinations to ensure early detection. Ironically, it was an undetected breast cancer that brought him a malpractice suit.
The patient, Mrs. F, was referred by her family practitioner for “prophylactic monitoring” of her breasts because her sister had recently died of breast cancer. An initial examination was normal, and Dr. B asked Mrs. F to return in six months. At her request, he agreed to shorten the time frame to three months. She returned one month later, however, stating that she could feel a lump in the left breast. Dr. B felt carefully but could not detect a mass. At most, he could feel a minor irregularity. He reassured Mrs. F and asked her to come back after the three-month interval.
Within a month, she was back. Not only did she think there was a mass in her left breast, she had convinced her friends and family that Dr. B was ignoring her. She made an appointment and demanded that something be done. Dr. B still could not feel a mass, but he decided to reassure Mrs. F by scheduling a mammogram, which was completed a few weeks later. The results were normal, and the patient’s fears subsided.
Shortly before her scheduled three-month appointment, Mrs. F called to say she was sure there was something in her left breast. Two days later, Dr. B agreed that there was a small mass (probably a cyst), which he attributed to changes associated with her menstrual cycle. At Mrs. F’s insistence, Dr. B ordered a biopsy, even though he was fairly sure the mass was benign. Scheduling conflicts caused a delay of about six weeks. Several days after the biopsy was performed, Dr. B was shocked to learn from the pathologist that Mrs. F had an aggressive, infiltrating carcinoma of the breast. When he called to notify her, Dr. B urged Mrs. F to come to the office to discuss treatment options, but she failed to appear. Except for a chance meeting in town, he never saw her again.
Within a week of the diagnosis, Mrs. F underwent a left radical mastectomy at another hospital, later receiving chemotherapy and a bone marrow transplant at a prestigious medical center in Boston. She survived for two-and-a-half years, before dying of metastatic carcinoma of the breast at age 45, leaving a husband and three teenage children.
About a year before Mrs. F’s death, her husband had consulted a plaintiff lawyer, who requested the medical charts from the hospital and from Dr. B’s office. The plaintiff lawyer, supported by favorable reports from his expert oncologist and radiologist, filed a malpractice suit against Dr. B and the radiologist who had read the first mammogram as normal.
The suit accused the two physicians of causing the patient’s unnecessary death through “negligent failure to timely diagnose [her] cancer” and claimed damages for the patient’s pain and suffering. Then, at the time of Mrs. F’s death, the plaintiff lawyer added a charge of “wrongful death,” claiming that Dr. B’s negligence was directly to blame. But Dr. B and the radiologist, in particular, felt their actions had been in accordance with the standard of care. Moreover, Dr. B maintained there had been no lump, that it was just a horrible coincidence that the patient had developed carcinoma in the exact area where she thought she could feel a lump. The plaintiff lawyer seized on what he saw as a point of weakness.
Both legal teams approached the trial confidently, but Dr. B was nervous. The plaintiff lawyer hammered away at Dr. B’s inability to find the lump: Was there a lump? Yes, said the lawyer, pointing out that he must answer in the deceased patient’s absence.
“Listen to the patient,” testified the plaintiff-expert oncologist, criticizing Dr. B for not finding a lump the patient said was there. “I think you can make out a mass, possibly cancer, in the area of interest,” the expert said, directing the jury’s attention to an area of the ultrasound that had been reported as normal.
Dr. B testified that he had felt the area indicated by Mrs. F, but there was no lump. When he did find a mass, he thought it was related to the patient’s menstrual cycle. The mass felt cystic, and in his experience, malignancy was highly unlikely. But the plaintiff lawyer cut him short: “Mrs. F directed your attention to the lump? And you couldn’t find it. But there was a cancer right where she showed you?” Dr. B said there was.
Under questioning from his lawyer, the defendant radiologist explained that mammograms have a relatively high failure rate and cannot be relied upon to rule out breast cancer. A lump is a more important factor than a normal mammogram, he said. Dr. B was dismayed when he realized that even the other defendant seemed to be ganging up on him.
The jury came back with a verdict of $1.75 million against Dr. B. The judge increased the award by $750,000 in interest from the time the case was filed, to a total of $2.5 million.
Each aspect of medicine is supposed to receive the same treatment from the legal system, measuring the performance of the medical professionals involved against the standard of care as established by expert testimony from both sides. In practice, there are certain emotionally charged areas of litigation in which sympathy factors overwhelm the average jury, and rational decisions are rare. Rather than trying to win such a case, the defendants in this lawsuit might have saved themselves considerable mental anguish by reaching an early settlement.
Until the 1950s, it was impossible in many states to recover damages if someone were killed, rather than injured, by the wrongful act of another. Most states now have “wrongful death” statutes, which allow the estate of a person to sue and recover damages even after his or her death. Once restricted to such situations as drunk drivers or assaults, these actions can now be brought if the patient dies from alleged malpractice. Plaintiff lawyers have expanded their earning power considerably through these types of lawsuits.
Effective risk management recognizes situations that are high-risk for litigation and seeks to take extra measures to reduce that risk. Some areas of medicine are high-risk not because there is a high statistical chance of the clinician’s making a diagnostic or treatment error but because if such an error does occur, the clinical consequences are drastic, and the subsequent lawsuit is hard to defend. Plaintiff lawyers rejoice when they can sign up patients with conditions in these areas, since the resulting megaverdicts enrich them, with moderate effort.
Clinicians must think twice before making a finding or management decision contrary to the patient’s expectations, however unrealistic those expectations may be. In this era of consumerism and ever-expanding patient rights, an adverse outcome can give the patient (or the lawyer) the opportunity to say to the clinician, “I told you so” in court, which often results in much head-wagging among the jurors — as well as million-dollar verdicts.