Clinical Review

4 Cases of Faulty Follow-Up: Cutting the legal risk of breast cancer screening

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Inadequate follow-up is usually at the root of lawsuits that allege missed or late diagnosis


 

References

Breast cancer is the number 1 most frequently misdiagnosed condition in malpractice claims, and failure to perform adequate and timely follow-up is often at the root of these cases.

This article considers lessons to be learned from 4 malpractice cases involving allegations of inadequate follow-up and misdiagnosis of breast cancer. We focus on specific red flags, and a “systems approach” to adequate follow-up of breast screening findings and patient complaints. We focus on these questions:

  • Which are the most important factors in risk management related to breast cancer?
  • What can you do to reduce your risk?

We analyzed 132 breast cancer cases closed by ProMutual Group of Boston, the total number of breast cancer cases closed by the company between January 1999 and December 2004. These cases closed with an aggregate indemnity payment of over $47 million, including 12 cases with payments of $1 million or more.

Defendant lineup

The 132 cases involved 279 defendants, including:

  • 129 radiologists (46%),
  • 78 women’s health professionals (ObGyns, internists, and family physicians; 28%),
  • 43 surgeons (15%),
  • 2 pathologists (1%), and
  • 1 physician each from several different specialties.
Although the number of defendants included in this 6-year study differs only slightly from the number identified in an earlier 12-year study,1 the percentages of cases attributable to women’s health practitioners (28%) and radiologists (46%) have reversed. In the older study, women’s health care providers were cited as defendants in 45% of cases and radiologists in 24%. The other percentages have remained constant.

Red flag high-risk patients, screen early and in-depth

Diagnosing breast cancer in its earliest stages is the most effective way to reduce risk of litigation, as well as morbidity and mortality. The first step is to identify the patients at high risk and take care to perform earlier, and perhaps more in-depth, screening for these women.

Kern’s triad of errors portends litigation

Kern2 identified a “triad of errors” to beware:

  • young age
  • self-discovered breast mass
  • negative mammogram.
When all 3 of these factors are present, litigation is especially likely.

Analyses of these breast cancer cases1,3 reveals that patients with an eventual breast cancer diagnosis of stage II or higher are more likely to file claims (though claims are not limited to this group).

LUCY’S CLAIM

35 office visits and no screening

Lucy, age 66, was seen 35 times by her physician and other health care providers over an 8-year period. Although she had a positive family history of breast cancer, no clinical breast examination was conducted at any of the visits. Ultimately, a mammogram was performed and found to be suspicious for cancer. A biopsy was positive. One year later, she had widespread metastases and filed a malpractice claim. Defense experts faulted the physician for “failing to undertake any preventive care.”

The case closed with an indemnity payment in the $500,000 range.

Completely omitting breast cancer screening invites a lawsuit, but avoiding litigation is not as simple as performing regular screening.

You must be prepared to question negative test results when the clinical examination is positive, to listen to the patient, and to follow through to diagnosis each positive clinical finding and every complaint that the patient brings up.

Inadequate follow-up: Many and varied

FIONA’S CLAIM

Negative aspirate and palpable mass

Fiona, 33, presented to her ObGyn with a painful breast mass of 3 months’ duration. The ObGyn referred her to a surgeon, who performed a fine-needle aspiration. Cytology revealed neither cells nor fluid, and the surgeon diagnosed “residual fibrocystic changes.” Eighteen months later Fiona was diagnosed with metastases to the liver. Defense experts faulted the ObGyn for not following up on the negative fine-needle aspiration: “When a needle aspirate is negative or does not reveal fluid and a mass is palpated, the mass is cancer until proven otherwise.”

This case closed with an indemnity payment of roughly $500,000.

Failure to perform adequate and timely follow-up lies at the root of many breast cancer cases, according to successive studies by the risk management department of ProMutual Group. In some instances, a missed screening or diagnostic test was not rescheduled; in others, a mammogram or slide was misread or the wrong breast mass was excised.

In some lawsuits, the issue was the physician’s assumption of benign disease before cancer was ruled out.

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