Ms. F was a 49-year-old nurse practitioner working for a small women’s health practice. One day, the office manager waved Ms. F over after taking a call. “It’s Mrs. C,” said the office manager. “She’s scheduled for a Pap test in two weeks but says she thinks she felt a lump in her breast with possible dimpling. Does she need to come in immediately?”

“No,” replied Ms. F. “Wait until her scheduled appointment. We’ll check it out then.”

Such phone calls were not out of the ordinary. A day didn’t go by without a panicky call from a patient who thought she felt a lump or had a strange sensation and was now sure she had something terminal. Ms. F took pride in her ability to soothe these patients’ fears. It was a skill she’d honed over the past 15 years of working at the practice, which consisted of two obstetrician/gynecologists, Ms. F, and the office manager.

Two weeks later, Mrs. C arrived for her appointment. The patient was a recently married 23-year-old teacher. Ms. F and the patient chatted amiably during the exam as Mrs. C expressed her desire to have many children.

“There’s no reason why you shouldn’t,” said Ms. F. “Everything is in order. I’ll give you a prescription for prenatal vitamins to take while you’re trying to get pregnant. You can get dressed now.”

“But wait,” said the patient, “Don’t you want to check that lump in my breast?”

“Oh yes, of course,” said Ms. F. Ms. F examined the breast and classified the lump as a cyst or fatty deposit and told the patient not to worry about it. “This is very common,” said the clinician. “Many women have these sorts of lumps, and it’s nothing to be concerned about.”

Six months later, Mrs. C became pregnant, and Ms. F saw her numerous times during the pregnancy. Mrs. C soon gave birth to a daughter after an uneventful delivery. Two months following the birth, Mrs. C noticed that the lump was larger and now painful. Ms. F was on vacation, so the patient made an appointment with one of the physicians, Dr. G.

The physician immediately ordered a mammogram and ultrasound, which detected a 4-cm mass. The mass was biopsied and confirmed as cancerous. Later that same week, Mrs. C had a positron-emission tomography scan, CT, and another biopsy. The cancer had metastasized to her liver and lungs. Mrs. C started chemotherapy and radiation followed by a lumpectomy and hysterectomy (she was suffering from estrogen-positive cancer). She was eventually diagnosed with stage IV liver, lung, and bone cancer.

Mrs. C’s family and friends urged her to sue Ms. F for shrugging off concerns about the lump when it might have been diagnosed early at a treatable stage. Mrs. C and her husband spoke to a plaintiff’s attorney who agreed to take the case. A lawsuit was filed against Ms. F and her employers for negligence and failing to diagnose the cancer.

Several years had passed from the initial encounter and notification of the malpractice lawsuit. Ms. F pulled out the patient’s records to remind herself of the case and saw that she had never made a notation of a lump at all at the initial visit. Nor had she indicated that further observation of the patient’s breast was necessary. She did vaguely remember soothing the patient’s concerns over something but didn’t remember the specifics.

At trial, the first witness introduced by the plaintiff was an obstetrics/gynecology NP who testified as to the standard of care. According to the expert, if the patient felt a lump, she should have been sent for diagnostic imaging even if Ms. F felt nothing.

The next witness was an oncologist. It was his opinion that the growth was most likely stage I cancer at the original visit with a 95% cure rate. By the time the cancer was actually diagnosed, it was stage IV. “At that point,” stated the oncologist, “it was incurable. The plaintiff has endured 60 rounds of chemotherapy, radiation, and surgery. But once the cancer has spread, it can no longer be cured.”

Mrs. C, who had been given six months to live and was now too weak to attend the trial, testified via videotape. She described feeling the lump, calling the doctor’s office, and being told she shouldn’t bother coming in earlier than her regular appointment. Then she described how during that appointment, Ms. F neglected to even check her breast until Mrs. C mentioned it to her. She talked about the ensuing diagnosis of cancer and how it had changed her life. Then she described her life before cancer, her relationship with her husband, and what she hoped to leave behind for her daughter.

The defense attorney tried to convince the jurors that the cancer was so aggressive that early diagnosis would have made no difference. Through an examination of Mrs. C’s pathology slides, an expert pathologist concluded that her cancer was an aggressive, rare grade three “infiltrating ductal carcinoma” that developed around the time Mrs. C noticed the postnatal change in her breast.

Other experts testified that Ms. F met the standard of care and that there was no evidence in Mrs. C’s medical records that a lump was ever noticed at the original visit. Ms. F did not testify.

The jury deliberated for two hours before deciding in favor of the plaintiff for $23 million dollars.

Legal background

In a medical malpractice case, the four elements that must be proven for the plaintiff to be successful are: (1) That a duty was owed by the defendant to the plaintiff; (2) that the defendant breached that duty; (3) that the breach caused injury; and (4) that the injury resulted in damages. The defense attorney in this case was hoping to introduce evidence to show that the third element—the breach causing injury—did not happen. That was the purpose of having experts testify as to the aggressiveness of the cancer and how early diagnosis would not have changed the outcome. The jury, however, was not convinced.

Protecting yourself

Ms. F made a number of mistakes. Her first error was trying to placate the patient rather than investigate the problem. While it is not common for such a young woman to develop breast cancer, it does happen. The patient should have been sent for ultrasound or mammography even if Ms. F did not believe the lump was cancerous. Ms. F was also careless in her record keeping. She made no notes about the lump or need for follow-up. The clinician was negligent in both her treatment of the patient and her documentation of that treatment, and a steep price was paid by all.

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