By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Health Care Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Rebeka Rioth, 2017 JD Candidate
Pepperdine University School of Law
News: In 2008, a 39-year-old woman underwent a mammogram. The doctor who reviewed the results reported that the calcifications, or calcium deposits, found in the woman’s right breast were benign. Although a prior mammogram screening in 2003 revealed no such calcifications, and the woman’s medical records reported a family history of breast cancer, the doctor did not order further diagnostic testing of the woman’s right breast. Instead, the doctor recommended that the woman undergo annual mammogram screenings. However, the woman did not elect to undergo a mammogram screening in 2009. In April 2010, the woman was diagnosed with Stage III invasive duct carcinoma, or breast cancer. Despite undergoing extensive treatment, the woman’s cancer metastasized, and her prognosis was deemed terminal by 2013. The woman and her husband sued the doctor and the radiology practice, and they argued that they breached the appropriate standard of medical care and treatment by failing to order additional testing or recommend that the woman undergo another screening within three to six months. They also argued that the improper reading of the 2008 screening and the lack of further testing resulted in the untimely diagnosis of the woman’s cancer more than two years later, with a significantly worse prognosis. After a jury trial returned a $6.9 million verdict in favor of the plaintiffs, the plaintiffs received $625,000 in accordance with a settlement agreement entered into during the trial.
Background: In 2008, a woman underwent a digital mammogram screening at a hospital. The doctor who ordered and subsequently reviewed the mammogram results reported that there were dystrophic-type calcifications, or calcium deposits that appear as white spots or flecks, in the upper portion of the woman’s right breast. The doctor rated the woman’s screening as a Breast Imaging Reporting and Data System (BI-RADS) 2, which means that he believed the calcifications found in the woman’s right breast were benign. He also noted that there were no suspicious microcalcifications, which can be an early sign of breast cancer.
The woman had undergone a mammogram screening on Nov. 13, 2003, that did not reveal the dystrophic-type calcifications found in the 2008 screen. Furthermore, the woman’s medical history provided that her mother had been diagnosed with breast cancer. Although the doctor recommended that the woman undergo an annual mammogram screening by April 2, 2009, he did not order any additional studies, diagnostic testing, or follow-up appointments with regard to the calcifications.
The woman did not have a mammogram screening performed in 2009. In April 2010, the woman sought medical treatment for a hard mass in her right breast, which had been present for about a month. On April 23, 2010, the woman was diagnosed with Stage III invasive duct carcinoma, or breast cancer. Although the woman underwent radiation, chemotherapy, and a mastectomy, by April 2013 the woman’s cancer had metastasized and spread to her sternum, pelvis, and spine. At age 44, the woman was diagnosed with Stage IV breast cancer and given a terminal prognosis.
The woman and her husband sued, and plaintiffs’ legal counsel argued that because the calcifications found in the 2008 mammogram screening were new and not present in the 2003 screen, the doctor should have rated the screen as a BI-RADS 0, or incomplete, and recommended additional screening, such as spot compression or spot magnification imaging. They further argued that this additional screening might have revealed pleomorphic features in the calcifications, which in turn would have required a biopsy of the woman’s breast and a recommendation of additional mammographic surveillance in three to six months. Thus, the attorneys asserted that the foregoing breached the standard of care by failing to timely diagnose and treat the woman, which allowed the woman’s cancer to progress to a greater stage before it was diagnosed in 2010 and resulted in a much worse prognosis.
The defense attorneys argued that the woman’s cancer was of a type that is very difficult to diagnose and can grow so fast that it could have developed within a six-month period. They further argued that the calcifications found during the 2008 screen were not cancerous and did not indicate cancer. Finally, they alleged that it is difficult to determine when the woman’s cancer developed because the woman did not undergo a screening in 2009 and that a natural disease process caused the woman’s injuries or damages.
After a jury trial, the jury returned a $6.9 million verdict in favor of the plaintiffs. However, the court later vacated the verdict and instead implemented a settlement agreement that was entered into by the parties during the trial. According to the agreement, if the jury returned a verdict in favor of the woman, the plaintiff would receive $625,000 10 days after the jury verdict.
What this means for you: This case is an example of the critical importance of diagnosis and early detection of serious conditions, such as breast cancer.
Legal counsel for the plaintiffs built their entire case on the theory that had her cancer been detected sooner than 2010, her condition would have had a different, more favorable outcome. Healthcare providers should use every resource available to them in the treatment and care of patients, including the patient’s medical history.
The woman’s attorneys emphasized the fact that the woman’s medical records, which note that the woman’s mother was diagnosed with breast cancer, were available during the woman’s 2008 mammogram screening. The woman’s medical history also indicated that her screening in 2003 did not reveal calcifications. Accordingly, the plaintiffs’ attorneys argued that the change in the woman’s mammogram results from 2003 to 2008 should have warranted additional testing of the calcifications.
This case had many circumstances that pointed to reasons to perform further diagnostic testing. Another important point is that the doctor also had an opportunity to consult with competent peers. Supporting opinions from experts before an adverse outcome can serve a defendant well if litigation occurs. Taking this step not only supports the decision-making process, but it also demonstrates the physician’s concern for the patient’s health and long-term prognosis.
Note also that the familial tendencies of breast carcinoma have been researched for years, and countless publications, available to physicians and the public, emphasize the importance of placing patients with family histories of breast cancer into the high-risk category. Some women even elect to remove breast tissue to avoid developing the disease. This doctor chose to put his patient and his career at risk by ignoring basic warnings.
It is equally important to employ proper patient follow-up procedures, polices, and protocols. Healthcare professionals should explain to patients the significance of a doctor’s recommendation for further diagnostic testing to ensure the likelihood of the patient actually following the recommendation.Additionally, hospitals should ensure that each patient’s condition is surveilled and monitored according to the individual facts and circumstances that are presented to healthcare personnel. Here, the woman presented new calcifications not previously detected in a prior mammogram screening and had a family history of breast cancer, which should have warranted mammographic surveillance every three to six months rather than on an annual basis.
This case also illustrates the frequently staged battle between expert witnesses in establishing the appropriate standard of medical care and treatment that a healthcare provider will be held to during a trial. Medical experts for the woman asserted that the standard of care for patients who present the type of calcifications found in the woman’s 2008 mammogram screening required that the patient should be advised to undergo screenings every six months for at least two years. Conversely, medical experts for the defense opined that even increased surveillance of the calcifications found in the 2008 screening would not have improved the woman’s prognosis. Rather, they believed that the woman’s cancer was so aggressive that the woman’s dismal prognosis was caused by the natural progression of her cancer and not anything that the doctor did or failed to do. Ultimately, the jury believed the plaintiffs’ expert more.
Finally, this case also is a good demonstration of an effective use of the “high-low” settlement strategy to limit exposure. In a “high-low” settlement, the parties agree that the plaintiff promptly will recover something, but almost always specify a procedural trigger and limit the top-end recovery. By agreeing to such a mechanism at some point short of the revelation of the jury’s actual verdict, the defense saved itself well over $6 million. Strategic negotiation strategies can be employed even in the middle of trial, so always work with your counsel on parallel tracks, litigation, and settlement.
- Charleston County Court of Common Pleas, South Carolina, Case No. 2013CP1005902 (Jan. 21, 2016).