By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N. Sandell, JD

UCLA School of Law, 2018

News: A 26-six-year-old woman visited a federally funded clinic three times, complaining of breast pain and lumps. However, the clinic’s employee failed to follow up and did not order an ultrasound. The patient subsequently was diagnosed with an aggressive form of breast cancer. She later died. A court determined an ultrasound would have revealed the suspicious mass, enabling an earlier diagnosis, and the clinic was negligent for failing to perform an ultrasound. The court awarded the patient’s surviving spouse $1.1 million.

Background: In December 2014, a 26-year-old patient sought treatment at a federally funded clinic for a sore throat and a non-tender nodule in her right breast. The nodule had been present for approximately three days. The records of the examination did not indicate whether the clinical staff attempted to perform a physical examination of the lump, and the exact location of the lump was not noted in the patient’s records. The patient was told the lump was most likely a cyst associated with her menstrual cycle. She was instructed to follow up with the gynecological department in two to three weeks.

In late February 2015, the patient attended the follow-up visit at the clinic, complaining of lumps and pain in her right breast. The clinic employee performed a manual examination, but could not locate any masses the patient felt. After the visit, the clinic mailed the patient a referral for an ultrasound; however, the patient alleged she never received the mailing. She also alleged she requested an MRI but was denied based on her young age.

Over several months, the patient failed to follow up, and missed scheduled ultrasound appointments. In May 2015, after complaining of pops and pain in her right breast, the patient arrived at a different hospital’s emergency department. After an ultrasound and a chest X-ray revealing no cysts or abnormalities, the patient was sent home and instructed to follow up with a breast specialist the next day. However, she again failed to do so. A few weeks later, she returned to the hospital for an unrelated condition. During this visit, she did not report any chest pain or breast tenderness.

At the end of June 2015, the surgical specialist conducted an exam, which revealed a 3-4 cm mass in the patient’s right breast. Despite the discovery, the patient did not return for diagnostic testing of the lump until Aug. 19, 2015. An ultrasound was performed and, for the first time, the patient revealed she had suffered traumatic injury to her right breast caused by her son’s elbow. Consequently, the radiologist who identified the mass in her right breast classified it as likely benign and consistent with trauma.

At the end of August 2015, before receiving the results of the ultrasound, the patient returned to the clinic for an annual gynecological visit. She did not report any tenderness or pain in her chest, and the nurse practitioner did not conduct a breast examination, noting that one had been performed less than six months prior. During the next several months, the patient underwent several tests, although it was unclear from the records whether the patient missed additional appointments. In April 2017, the patient finally underwent a surgical double mastectomy to remove the mass, which had grown to 10 cm. The mass was consistent with angiosarcoma, an extremely aggressive type of cancer that often is metastatic. Despite the double mastectomy, further testing confirmed the angiosarcoma had spread to the patient’s pulmonary nodules, ribs, sternum, and spine. Following her surgery and until her death in April 2019, the patient received radiation five days per week and was administered morphine and oxycodone for pain management. During the final months of her life, the patient was bedbound and extremely weak.

The patient’s surviving spouse filed a medical malpractice lawsuit against the clinic, alleging the delay in diagnosis prevented timely treatment and caused the patient’s death. The court concurred, noting if the ultrasound had been performed in September 2015, the cancer would have been detected and treated sooner. At that time, the mass was only approximately 3 cm in diameter, and the chances of recovering from this aggressive form of cancer was significantly greater for a mass smaller than 5 cm. While the court recognized the clinic was negligent for the delayed diagnosis, the court also confirmed the patient was partially responsible for her injuries. This finding was based on the patient’s repeated missed appointments and failure to follow up. As a result, the court reduced the initial recovery award of $2.2 million to $1.12 million.

What this means to you: Although the parties disputed several essential facts in this case, one important, incontrovertible fact was the patient missed several follow-up appointments, failed to schedule tests recommended by the care providers, and thus contributed to her injuries. Physicians and care providers only have so much ability to compel patients to seek treatment. Even with the most urgent recommendations, a patient always can refuse treatment, expressly by denying such treatment or implicitly by simply failing to follow up on recommendations. Under such circumstances, it is proper for a physician or care provider to draw attention to the patient’s own shortcomings and fault. A jury may even determine that the patient, not the care provider, was solely responsible for the injuries suffered, and the care provider cannot be found liable for any damages.

In this matter, the defendant care providers did raise the patient’s failure to attend follow-up appointments and schedule recommended testing. The court concurred, reducing the plaintiff’s recovery to almost half the verdict rendered. Under these circumstances, the care providers were not completely absolved of liability. If medical personnel at the clinic paid closer attention to the patient’s symptoms, conducted more detailed analysis, and performed an ultrasound, they would have identified the tumor at an earlier stage, preventing it from metastasizing and potentially saving the patient’s life.

To determine whether a breach of the standard of care occurred, the court analyzed each of the patient’s visits to the federally funded clinic, and reviewed the expert witness’ testimony concerning the evolution of the patient’s condition. The plaintiff’s expert testified the care provider who examined the patient on the first visit breached his duty of care by recommending a follow-up visit weeks later, rather than immediately referring the patient to a specialist. However, the defendants’ expert successfully established three key facts qualified the patient’s situation as non-urgent, thus justifying the recommendation. First, the patient was only 26 years old at the time, and cysts and chest pain are more common in women of that age group. Second, the patient reported no family history of breast or ovarian cancer. Third, the patient reported the mass had only been present for three days.

Given these circumstances, a non-urgent follow-up visit was appropriate. The court agreed with the defendant care providers on this issue and found that during the first visit, no breach of duty had occurred. Similarly, during the patient’s second visit, the judge ruled the appropriate standard of care would have required a referral for an ultrasound. The referral was actually mailed by the examining nurse practitioner to the patient’s address. Therefore, the second visit also satisfied the required standard of care.

However, during the third visit, the court ruled the patient presented more substantial evidence for heightened scrutiny and action by the care providers. In fact, the plaintiff’s expert opined that, given the patient’s history of pain, the nurse practitioner who examined her should have followed up on the previous referral of an ultrasound (which the patient never scheduled) and immediately provided a new referral and instructed the patient to schedule the test. Both parties agreed an ultrasound performed at this time would have revealed the mass, likely resulting in further testing. The court also ruled the patient’s tumor would have been detectable by manual examination in August 2015. If the nurse practitioner had performed a routine breast exam, the tumor would have been detected.

This case reveals the necessity of increasing scrutiny when a patient returns with a continuing complaint. Additional resources should be used to investigate the cause, especially when it may be life-threatening. It is inevitable that patients do not comply with follow-up appointments and instructions, or even deny or ignore their symptoms. Care providers should provide immediate access to diagnostic resources when warranted, even if a patient is resistant. More often than not, breast lumps prove to be benign, transient manifestations caused by multiple factors like hormonal changes during the menstrual cycle. However, ignoring a lump that persists can be life-threatening, as in this case. Additionally, some of these tumors can be more aggressive in younger women. It is crucial to obtain an accurate history and timeline of events, such as the dates of first appearance, frequency, dates of follow-up care, and changes in size, location, and firmness. Leaving potentially cancerous tumors unidentified poses a significant risk for the tumor to grow or for the cancer to metastasize, increasing the patient’s risk of harm. Unfortunately, in this case, those risks materialized and the delayed diagnosis was a significant factor in the patient’s death.


  • Decided on Oct. 5, 2020, in the United States District Court for the Southern District of New York, Case Number 1:18-cv-09270.