The one case I’ll always remember is my first case. Two days before Christmas, a defense attorney hired me to consult on a breast cancer medical-malpractice case. On Christmas Eve a large box of records was delivered to my door.
A 45-year-old married woman died of metastatic breast cancer 15 months after her initial diagnosis. The plaintiff, husband of the decedent, filed a lawsuit against the patient’s surgeon and a radiologist as well as the group practices to which each belonged.
Her medical records indicated the presence of fibrocystic disease in both breasts from age 25. Family history indicated that her mother had died of breast cancer. At age 32, the first mammogram cited in these records showed dense breast tissue with some asymmetry of parenchymal pattern. When compared to a previous mammogram (not in these records) no changes were noted. Her first visit to the defendant-surgeon occurred shortly after this mammogram because the patient noted a small lump in her right breast which had not been visible on the mammogram. A small fibroadenoma was excised.
Over the next 11 years the patient had routine mammograms plus additional ones as needed, as well as breast exams done by her gynecologist, primary care practitioner and the defendant-surgeon. During this period the patient also had ultrasounds, biopsies and excisions as necessary to evaluate thickening breast tissue and remove fibroadenomas in both breasts.
At age 44, the patient had a screening mammogram which showed extremely dense breast parenchyma with modularity in both subareolar breasts but was unchanged from previous exams. Two weeks later the patient saw the defendant-surgeon for an annual follow-up. The surgeon noticed more pronounced thickening in the right breast and performed a fine needle biopsy which revealed invasive carcinoma.
The patient underwent a right mastectomy and axillary node dissection. Two months later she began five months of chemotherapy. At the completion of chemotherapy, the patient experienced a marked resumption of energy lasting five months. She returned to work, exercised vigorously and even considered becoming pregnant. Two weeks after a physical exam which found no evidence of disease, the patient suddenly complained of abdominal pain. The workup revealed extensive metastatic disease within the liver and skeletal system and she died within a month.
My CLNC® Role
The defense attorney requested that I review the patient’s medical records over a twenty-year period and look for the word “breast.” When I found the word “breast,” I was to document the date, patient’s comments, provider observations, studies/procedures, results/findings, interventions, recommended follow-up and lab tests. I created a table and listed findings in chronological order with the words “left breast” and “right breast” in bold. This report was to be completed by New Year’s Eve. In addition to submitting the timeline, I discussed the strengths and weaknesses of both plaintiff and defense. I was informed that the timeline was to be used to create appropriate medical illustrations.
One month later the attorney asked me to review a website tool that assists physicians in making estimates on the probable benefit that cancer patients would receive from receiving adjuvant therapy following surgery. I discussed the tool, pointed out how the plaintiff’s attorney might use this tool and cited reasons why the assumptions the plaintiff’s attorney might use would not be valid. I also forwarded excerpts from this website to the attorney along with my report.
The plaintiff alleged that the surgeon was negligent in failing to recognize, diagnose and treat the thickening that she observed in the patient’s right breast one year prior to the diagnosis of breast cancer. Additionally, the plaintiff alleged failure to obtain an ultrasound and biopsy, failure to consult with others and failure to inform the patient of risks and alternatives to her course of treatment. The plaintiff alleged that the radiologist failed to identify and report suspicious microcalcifications in the patient’s breast, failed to recommend further imaging studies or biopsy, failed to inform the patient of risks and alternatives to her course of treatment and failed to consult with others.
The plaintiff further alleged that as a result of these deviations from the standards of care, the patient experienced premature and preventable death. If acceptable standards of care had been met, the patient’s condition would have been diagnosed and treated one year earlier, and more likely than not the patient would not have suffered a premature and preventable death.
Additionally, the plaintiff alleged that the group practices that employed the surgeon and radiologist were vicariously liable for the negligence of these two employees.
The defense stated they had evidence to show that at all times during their care and treatment of the patient, the surgeon and radiologist complied with acceptable standards of care and that no alleged act or omission caused the plaintiff’s injuries, or contributed to her death.
Several experts stated that the surgeon’s care was appropriate in view of the physical and diagnostic findings. Also, expert witnesses would testify that this particular breast cancer was extremely aggressive based on its primary features together with its exceedingly aggressive clinical course. Despite surgery and aggressive chemotherapy, the patient died 15 months after diagnosis. Most probably, the metastases existed at least a year before the surgery, and because of the resistance to chemotherapy, earlier diagnosis and treatment would not have changed the outcome. One of these expert witnesses, a pathologist, would testify that it takes many years for a metastatic lesion to measure four centimeters, the size of one of the liver metastases; therefore, these metastases were present as long as two years prior to the diagnosis of breast cancer. Even if the alleged delay in diagnosis had occurred, this alleged delay would have had no effect on prognosis or outcome.
Evidence would be introduced in defense of the radiologist that the mammogram in question was appropriately interpreted and that findings were consistent with the findings of mammograms over the past several years. In addition, each mammogram was double-read, meaning that a second radiologist reviewed the mammogram and wrote up his findings without knowing the interpretation of the first radiologist. Interpretations were consistent. Furthermore, a mammogram taken three weeks before the diagnosis of breast cancer (a year after the mammogram in question) and read by two different radiologists (neither was the defendant) showed findings consistent with every previous mammogram.
The case went to trial and the jury rendered a defense verdict. I felt excited and happy to begin my new career in such a tangible way on such an interesting case. And to think, it all started on Christmas Eve.
Guest Blogger Profile
Carolyn J. Bilodeau, RN, BSN, MS, CLNC, has more than 30 years experience in clinical, administrative, educational, consulting and research in behavioral medicine, medical-surgical nursing and pastoral care. She has extensive experience in emotional and psychological reactions to illness, end of life issues and death. Since becoming a Certified Legal Nurse Consultant in 2009, she has reviewed more than 200 Hepatitis B and Hepatitis C cases and more than 30 sexual abuse cases. In addition to her CLNC® business, Carolyn is a guest lecturer at Boston College and a volunteer coordinator of pastoral visitors at her local hospital.
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