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Summary: Breast Cancer is a well-defined and treatable if not always curable disease process. Once suspicious findings-lumps, nodules, nipple discharge or other telltale signs of a problem are noted-prompt evaluation and follow-up care is essential. In this case, a patient with a family history of breast cancer presented with a "mass" and was evaluated. She did not follow-up as directed and when she later died of breast cancer, her estate would sue for "failure to diagnose, treat."
The 22-year-old woman was seen at a family planning clinic. Part of the assessment/examination included a routine breast exam. The nurse palpated a mass in the woman's left breast.
"The detection of a lump in the breast is a common occurrence. Although most lumps are not caused by cancer, the possibility of malignancy must always be considered. Thus, from the moment a lump or a suspicious change in texture or resistance is felt in some part of the breast, a series of decisions must be taken to exclude or establish the diagnosis of cancer."2
A family history revealed that the patient's mother had died of breast cancer.
"A cancerous tumor of breast tissue, the most common cancer in women and the second leading cause of cancer death for women in the World. The rate increases between 30 to 50 years of age and reaches a second peak at 65 years of age. Risk factors include a family history of breast cancer, no children, exposure to radiation, young age when menstruation began, late menopause, being overweight, diabetes, high blood pressure, long-term cystic disease of the breast, and, possibly, hormone therapy after menopause. Women who are over 40 years of age when they bear their first child and patients with cancer in other areas also have a greater risk of getting breast cancer."3
The nurse referred her to a nearby breast clinic for evaluation of the suspicious lump. Both a nurse and physician would verify the presence of the finding.
"Beginning symptoms, found in most cases by self-examination, include a small painless lump, thick or dimpled skin, or nipple withdrawal. As the tumor grows there may be a nipple discharge, pain, ulcers, and swollen lymph glands under the arms. The diagnosis is made by a careful physical examination, a breast scan (mammography), and examination of tumor cells."3
The patient was instructed to return in three months for evaluation and follow-up of the suspicious mass. Given the family history and nature of the lump, the patient was instructed that the likelihood of malignancy was high.
The suspicious findings and instructions for the patient to follow-up were communicated to the patient. They were also documented in the patient's chart carefully. It was emphasized that the finding needed to be monitored in light of the patient's family history. Despite this instruction, the woman did not return in three months as directed.
No further evaluation would be documented until two years later when a formal diagnosis of Breast Cancer was made. In addition to the cancer in the breast, metastasis to the neck and arm was noted.
"Tumors are more common in the left than in the right breast and in the upper and outer parts of the breast. Spreading through the lymph system to lymph nodes under the arm (axillary) and to bone, lung, brain, and liver is common. Surgical treatment, depending on the tumor, may be a radical, modified radical or simple removal of the breast (mastectomy), with the removal of axillary nodes."3
A radical mastectomy was performed and followed by standard chemotherapy/radiation treatment. The cancer did not respond to the therapy. The patient, initially suspected of having disease at 22, would die at 25.
Due to patient's lack of follow-up, treatment of the disease was potentially delayed for two crucial years.
"The best chance for successful treatment occurs when cancer is found early. Mammograms, or special x-rays of the breast, can detect more than 90 percent of all cancers and should be part of every woman's breast health program, along with breast self-exam and physical exam by a doctor. If a cancer is found early, it is more than 90 percent likely to be completely curable."3
Following her death, the patient's estate filed a lawsuit against the Family Planning Clinic and the Breast Center nurses & physicians. The suit alleged negligence and medical malpractice in the treatment/diagnosis of the patient's Breast Cancer.
Noting the circumstances of the case, summary judgement was initially handed down in favor of the defendants by the court. It noted that acceptable Nursing/Medical Standards and Procedure had been followed in the assessment, documentation and instruction of the patient with a potential Breast Cancer diagnosis.
The administrator of the patient's estate appealed.
Questions to be answered:
1. Was either the Nursing or Medical staff at either the Family Planning Clinic or Breast Center negligent in their examination or duty to inform the patient of her potential diagnosis?
2. Was prompt and early recognition/treatment of the patient's cancer delayed or hindered by the actions of the nurses or physicians?
3. Was the patient's "failure to follow-up as instructed" responsible for the unmonitored progression of the disease and resulting metastasis?
The court noted that clearly, the woman's potential condition had been identified appropriately. The patient had been informed that she was at high risk for Breast Cancer and that further evaluation was needed. She was made aware of the findings and what they could represent.
No claim of "failure to treat appropriately" could be substantiated.
The court recognized that no treatment had in fact been given by the Family Planning facility or the Breast Clinic. The reason no treatment had been given was strictly due to the patient's failure to comply with stated instructions for follow-up.
The documentation of the early suspicious findings and recommended follow-up instructions were clearly noted in the chart. Noted as well was the fact that the woman did not comply as instructed.
When the cancer was finally detected and treated, it was known that the cancer had spread. At that point the removal of the cancerous breast by itself would not offer a cure.
"If I do get breast cancer, a mastectomy gives me my best shot at survival.
A woman may make the psychological leap of assuming "the more I suffer, the more I deserve to be cured" -- a natural reaction to a frightening disease. Natural but misguided. "Women don't die of this disease because it comes back in the breast, but because of a spread to the bones or liver." "If the cancer hasn't spread before surgery, a mastectomy and breast-preserving lumpectomy, followed by a course of radiation treatments offer the same outcome. And if it has already spread, you need other treatment to cure the distant metastasis."3
The appellate court affirmed the judgement of the lower court.
This case illustrates how crucial early detection and follow-up care of suspicious Breast findings are. It shows also how frivolous lawsuits can be brought against nurses and physicians literally "at will." At no point in the case was there clear evidence of negligence or wrongdoing.
The records show that the initial examination was done quite well. The patient received excellent assessment/guidance when the pre-cancerous findings were initially detected. As a reward for their attention to detail and assessment, the nurses and physicians were dragged into a lawsuit and appeals process.
Despite it's poor chances of success and lack of a case, the administrator of the estate, seeking any type of reward chose to bring the suit. Even after the complaint was initially dismissed, the plaintiff chose to appeal.
For each of the nurses and physicians involved, legal costs needed to be paid and time was lost from employment to attend the depositions, trials and legal proceedings. The fortunate ones among them would have costs covered by malpractice insurance policies.
Commonly, a lawsuit is initiated after an employee has left the facility for another job. An employer in this case is under no obligation to provide legal counsel.
September 5, 1999: Sealed "Rape Kit" Reopened By Nurse. Evidence Inadmissible?
Documentation of observations and findings are basic to nursing practice. Our practice is governed by standards of practice and "protocols" to be followed. In this case, a nurse admitting a rape victim collected and placed in a "rape kit" DNA samples, evidence to be submitted for laboratory analysis. The evidence submission protocol would inadvertently be broken by the nurse. The defense for the rapist would argue this breach made the evidence inadmissible.
State v. Southern, 980 P.2d 3 - MT (1999)
August 29, 1999: Surgeon "Loses Clamp" Behind Patient's Heart During Bypass.
Nurse's Responsibility To Pick Up?
Summary: During any surgical operation, there is an inherent "duty" owed to the patient that the operation will be carried out competently. This includes carrying out specified procedures and taking measures to prevent "foreign" objects from being left in the body cavity. In this case, during a coronary artery bypass grafting, a clamp slipped from the surgeon's sight. It would be found on x-ray later sitting behind the patient's heart.
August 22, 1999: Psychiatric Nurse, Sued By Hospital After Developing Relationship With Client?
Wright v. Mercy Hosp. Of Janesville - 557 N.W. 2d 846 - WI (1996)
Summary: Doctors and Nurses by nature of their positions deal with patients when they are vulnerable, off-balance and emotionally needy. When the population includes the psychiatric patient, the potential exists for a client to develop "feelings" for the caregiver. In this case, a sexually abused mother of three was admitted for multiple mental disturbances. During the course of the treatment, a relationship developed and led to sexual encounters following discharge. When it came to light, the patient successfully sued. The hospital would attempt to recover damages against the nurse following her testimony in defense of the facility. This is commonly called a Subrogation action.
August 15, 1999: Violent Psychiatric Patient Attacks Nurse, No Legal Recourse Against Facility or Psychiatrist?
Charleston v. Larson, 696 N.E. 2d 793 - IL 1998
Summary: It would seem absurd, that if a physician admits and facility assigns a nurse to care for a known violent patient, that it has no legal obligation to protect that nurse against violence. In this case, a psychiatric patient sought admission to facility. On admission, he threatened to attack a nurse. When the patient would follow through on his threat, the nurse was denied legal recourse against the psychiatrist who could have taken precautions against the attack
August 8, 1999: Pregnant Prison Inmate Complains of Miscarriage,
Corrections Nurse On Duty Ignores Symptoms?
Ferris v. County of Kennebec, 44 5. Supp.2d 62 -ME (1999)
Summary: Nursing assessment skills are one of our most valuable assets. They allow us to effectively evaluate our patients and communicate significant findings to physicians and other members of the healthcare team. In this case, a pregnant woman with a previous history of miscarriage complained of vaginal bleeding and abdominal discomfort. The assessment performed by the nurse fell negligently short of the required standard of care.
August 1, 1999: Nursing Duty To Patient, "Does Not Guarantee" Safety Or Quality Of Care.
Summary: When a nurse accepts report and responsibility for the care of a patient a duty to the patient is also accepted. This duty is to provide a reasonable standard of care as defined by the Nurse Practice Act of the individual state and the facility Policy & Procedures. In this case, a post-op abdominal aneurysm repair patient was injured after falling from his bed to the floor. When a lawsuit was filed the court initially mistook expert testimony to imply the role of the nurse includes a guarantee of safety.
Downey v. Mobile Infirmary Med. Ctr. - 662 So. 2d 1152 (1995).
July 18, 1999: Good Samaritan Laws & Acts. Do They Cover Nurses Volunteering Nursing Care When A Citizen Goes Anaphylactic.
"Off-duty" healthcare professionals rendering Emergency aid are in most cases "covered" by the Good Samaritan Acts. These are laws enacted in each state that provide some degree of immunity from liability for good faith efforts in giving emergency care. In this case, a nurse and physician were sued for providing assistance in a volunteer function at a "first-aid" station. Good Samaritan "immunity" was not recognized by the courts.
Boccasile v. Cajun Music Ltd. 694 A 2d 686 - RI (1997)
July 11, 1999: Nursing Home Rehabilitation Stay Proves Terminal. Was Quality of Care Given An Issue?
Nursing homes are frequently a patient's destination for rehabilitation following surgery. Common conditions fitting this bill include large bone fractures, hip replacements and stroke. Following these acute episodes, the patients are too unstable to go home and not "sick" enough to have their hospital stays reimbursed by insurance companies. The purpose of admission to a nursing home is to help the patient regain lost function, strength and health. In this case, the patient would remain in the Nursing Home till her death of complications. Lloyd v. County of Du Page, 707 NE.2d 1252 - IL (1999)
1. 40 RRNL 4 (September 1999)
2. Canadian Medical Association. 1998. Clinical Practice Guidelines For The Care And Treatment Of Breast Cancer. Retrieved October 24, 1999 from the World Wide Web. http://www.cma.ca/cmaj/vol-158/issue-3/breastcpg/0003.htm
3. Homeopathy Clinic. No Date given. Breast Cancer: Retrieved October 24, 1999 from the World Wide Web. http://www.homoeopathyclinic.com/
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