Getting Sued for Breast Cancer Malpractice

Richard E. Anderson, MD, FACP, Chairman and Chief Executive Officer, The Doctors Company and TDC Group

Suits involving breast cancer are the most common cancer-related claim according to The Doctors Company data. This is true even though diagnostic pathways are well established, patients often request breast cancer–specific evaluation, and there is clear benefit to early diagnosis.

Greater than 90 percent of these cases allege a diagnostic error—delay, failure, or wrong. Not surprisingly, the physicians involved are radiologists, internists, and gynecologists. These diagnostic claims include a significant number with issues in ordering and interpreting diagnostic tests, failing to appreciate signs and symptoms, and failing to obtain a consult. In almost 20 percent of the claims, there was a communication issue between the provider and patient/family, including education, follow-up instructions, expectations, and poor patient rapport.

Without much difficulty, I have put together a list of 39 ways to get sued for breast cancer. Undoubtedly, you will not agree with every item or its categorization, and you may want to add others. A number of these examples could have been listed in more than one category. I encourage your participation in adding to future versions of this material. Nonetheless, the ways I have listed here have proven to be regrettably effective in precipitating malpractice litigation, an outcome all of us wish to avoid.

19 Ways to Get Sued for Breast Cancer Involving the History and Physical Examination

  1. Assume that a mass in a young woman is not cancer.
  2. Ignore a breast mass in a pregnant woman.
  3. Ignore a breast mass in a lactating woman.
  4. Ignore a breast mass in an elderly woman.
  5. Allow a negative physical examination to delay biopsy in a patient with a suspicious mammogram.
  6. Believe that the absence of grave signs of breast cancer is evidence against the presence of breast cancer.
  7. Assume a nipple discharge is just hormonal.
  8. Assume the presence or absence of breast pain is an important determinant of cancer.
  9. Fail to document history, physical examination, and plan for follow up.
  10. Order a diagnostic study and fail to assure it is completed.
  11. Allow a patient with a known lesion to be lost to follow up.
  12. Tell a patient not to worry about a mass she brings to your attention.
  13. Fail to suggest breast cancer screening in appropriate patients.
  14. Fail to assure that breast cancer screening includes both a physical examination and a mammogram.
  15. Fail to take an adequate family history.
  16. Fail to discuss breast cancer prevention in high-risk patients.
  17. Fail to discuss family screening for a patient with a strong family history of breast cancer or who is known to carry BRCA 1 or 2.
  18. Dismiss palpable axillary lymph nodes as simply normal.
  19. Tell a patient she would have been cured if only we had found the lesion earlier.

10 Ways to Get Sued for Breast Cancer Involving Mammograms

  1. Allow a negative mammogram to delay biopsy of a suspicious mass.
  2. Allow an indeterminate mammogram to delay biopsy of a suspicious mass.
  3. Allow a negative breast ultrasound to exclude cancer in the face of an indeterminate mammogram.
  4. Read a technically inadequate mammogram.
  5. Fail to compare current mammograms to prior studies.
  6. Fail to personally inform the referring physician of suspicious findings.
  7. File an abnormal mammogram report without contacting the patient.
  8. Fail to obtain a specimen or post-biopsy mammogram in a patient with diffuse microcalcifications.
  9. Perform a mammogram on a self-referred patient without assuring clinical follow up.
  10. Tell a patient that with the benefit of hindsight, a nonspecific finding on a prior mammogram was actually cancer.

10 Ways to Get Sued for Breast Cancer Involving Biopsy and Treatment

  1. Issue a pathology report without reviewing prior biopsies.
  2. Issue a pathology report without understanding the clinical context.
  3. Fail to personally inform the referring physician of a suspicious finding on a biopsy.
  4. Allow a negative fine-needle aspiration to exclude a diagnosis of breast cancer.
  5. Perform definitive breast surgery relying on an outside pathology report from a pathologist you do not know.
  6. Perform definitive breast surgery without waiting for a definitive pathology report.
  7. Fail to offer breast conservation therapy to appropriate patients.
  8. Treat inflammatory lesions of the breast with antibiotics without assuring complete resolution.
  9. Treat enlarged axillary lymph nodes with antibiotics without assuring complete resolution.
  10. Assume a patient will be grateful because your decision to delay biopsy of a lesion, which proved to be malignant, was based on sound clinical judgment.

These 39 ways of getting sued for breast cancer are not exhaustive, but every one has, in fact, produced litigation in our experience. The last one is particularly troublesome, because it says our system does not reward even the responsible exercise of clinical judgment unless the outcome is perfect. No physician believes good clinical practice is possible without good clinical judgment, and no one wants to practice purely defensive medicine. Nonetheless, in the current medicolegal environment, anything other than the earliest possible diagnosis of breast cancer may produce yet another malpractice claim. Weighed against a diagnosis of cancer, retrospective arguments concerning cost, patient anxiety, or low probability may not be satisfactory defenses.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J13063 09/21