Mistake in cancer diagnosis leads to seven months of unnecessary chemotherapy, subsequent hospice care
News: In May 2009, the month after she underwent a left breast mastectomy for removal of a cancerous tumor, a patient visited an oncologist, who diagnosed her with Stage IV metastatic cancer of the left breast. Based upon this diagnosis, the patient underwent several courses of chemotherapy and received home hospice care. In April 2011, a further CT revealed that the diagnosis was incorrect, and further work-up indicated the patient had been cancer-free since before May 2009. The patient sued the oncologist for negligence, and a jury awarded her $367,500 for physical pain and mental anguish.
Background: In April 2009, a 50-year-old female patient underwent a left breast mastectomy for removal of a cancerous tumor. The following month, she presented to the oncologist, who diagnosed her with metastatic left breast cancer. She was told that the cancer was Stage IV and terminal. The diagnosis was based on a CT of the chest, which the oncologist indicated showed enlarged mediastinal lymph nodes. The oncologist ordered a PET scan and a bone scan, the results of which were inconclusive. Based upon the oncologist’s diagnosis, the patient began chemotherapy in June 2009. The oncologist did not recommend that she seek a second opinion before beginning treatment. She continued to treat with the oncologist and ultimately underwent eight rounds of chemotherapy over seven months.
In February 2010, the oncologist referred the patient for a second CT of the chest. The study was interpreted by a radiologist, who noted the patient had "mediastinal lymphadenopathy without change." The radiologist also encouraged correlation by examining tissue from the enlarged lymph nodes. Following the second CT, the oncologist did not order a biopsy or any further diagnostic tests. The oncologist’s diagnosis remained unchanged, and he ordered hospice care.
The patient received hospice care from March 2010 until April 2011, when she presented to another doctor to treat her anxiety. This doctor indicated that she might not have cancer, and referred her to a hospital for further testing. She underwent a further chest CT, which was compared to a prior study from February 2008, prior to her original cancer diagnosis. Based upon this comparison, it was determined that what appeared to be enlarged lymph nodes on the newer image was actually sarcoidosis, and not evidence of cancer. Subsequent testing at a hospital specializing in cancer treatment indicated that the patient had been free of cancer since the mastectomy was performed in April 2009.
The patient sued the oncologist for negligence in failing to properly interpret the results of the May 2009 CT. She claimed that as a result of the oncologist’s negligence, she underwent eight rounds of chemotherapy and received over a year of home hospice care. As a result of chemotherapy, she complained that her body deteriorated and she lost her hair, eyebrows, and eyelashes. She claimed that her diagnosis and treatment caused her to lose her job and her health insurance, and to suffer significant anxiety and depression, which were treated with medication. She also claimed that she gave away some of her belongings.
Several months before the case went to trial, the oncologist died. He had previously given a videotaped deposition, which was used during the trial. During the two-day trial, the patient’s attorney argued that while chemotherapy is commonly prescribed after a mastectomy to ensure that cancer will not reoccur, the oncologist should have presented the choice of opting out to the patient. The attorney for the oncologist noted that it was "very difficult" to defend his client after he died, but argued that he had relied on radiologists to help him interpret the diagnostic scans. The jury returned a verdict for the patient and awarded her $367,500 for pain and suffering. Pursuant to the law of the jurisdiction where the case was tried, the award will be reduced to $250,000.
What this means to you: The oncologist in this case essentially diagnosed the patient with a more advanced form of disease than she was found to have, resulting in unnecessary and harmful treatments along with tremendous emotional damages.
A 50-year-old woman undergoes surgery to treat breast cancer. One month later, her oncologist reviews a CT of the chest, which reports enlarged mediastinal nodes. Additional testing via bone scan and PET scan are listed by the radiologist as "inconclusive."
On the basis of this testing, the oncologist diagnoses the patient with stage IV metastatic cancer. This diagnosis leads to eight rounds of chemotherapy followed by a referral to hospice. Eventually, almost as a fluke, when the patient consults another physician for anxiety, further testing is done, and it is revealed that the patient was cancer-free after the mastectomy.
There appear to be several failure points in the care and treatment of this patient. The first the lack of a second opinion. It is not clear whether the oncologist simply did not suggest a second opinion or affirmatively dissuaded the patient from seeking another opinion. Either way, with what was a devastating and fatal diagnosis, it would have benefited the patient from confirming the oncologist’s opinion.
Secondly and potentially of greater importance, the essence of the diagnosis was in the radiological testing, including the bone scan and PET. An "inconclusive" finding should have resulted in another radiological opinion on the films and possibly a repeat of the testing. The stakes were too high to simply call it without confirmation. The oncologist left himself open to criticism in not going all the way to confirm the diagnosis.
There is also a second CT scan, the report of which has the radiologist calling for correlation by biopsy of the mediastinal tissue. The suggestion was also not followed up by the oncologist, which is a major risk management issue. The oncologist might have thought that the radiologist simply was hedging, but once the suggestion is out there, the oncologist has to be right. This is a classic situation faced by physicians in which a consultant makes a suggestion for further testing that the referring physician feels is not necessary. Once the suggestion is out there, the failure to follow the suggestion and then being wrong creates a high degree of liability in front of a jury for the oncologist.
This particular patient also spent a large amount of time in a hospice program because she believed that she was dying. She gave away possessions and, according to the report, lost her hair, health, job, and insurance due to the chemotherapy and diagnosis. Although the defendant oncologist passed away prior to trial, an argument might have been made by counsel that the patient required the chemotherapy treatment regardless to ensure the cancer did not return. In point of fact, this therapy ultimately might have contributed to the positive outcome. Regardless, the patient spent a long time believing that she had a fatal disease when she did not, which is clearly compensable in the court system.
What mitigates the damages in this case is that juries sometimes look at these fact patterns differently than other cases. In essence, the jury feels that in the end, the patient should be happy to not have the disease as opposed to other cases in which the patient was told they were healthy and actually were suffering from a serious condition. Usually those cases involve patients who wrongly believe that they are sick for a week or a month as opposed to the extended time this patient had that belief.
The defendant’s insurance company also was helped by the jurisdiction. In the courts of this particular state, pain and suffering claims are limited to $250,000 by a statutory cap. This amount is not the same as in other places where seven figure damages for pain and suffering are common. It is also somewhat surprising that the whole case revolved around emotional and physical damages. It would be common for plaintiffs in these cases to sue for the money damages of lost income, expenses, etc. The amount of these damages is unusual; in many places, the amount of money would be significantly more.
The bottom line: Be sure or as sure as one can be in the practice of modern medicine. There is a natural tendency, particularly by experienced physicians, to rely on their diagnostic acumen and experience. This case also demonstrates that one can be liable not only for failing to diagnose, but also for over-diagnosing.
24th Judicial District Court, Victoria County, TX. Case No. 12-2-72769-A.