On January 19, 2018, Clark Hudson obtained a defense verdict on behalf of a women’s health medical group. The case concerned a 38-year-old plaintiff who was diagnosed with Stage IIIB inflammatory invasive ductal carcinoma, a rare, aggressive form of breast cancer. Plaintiff claimed her long-time obstetrician-gynecologist, who was employed by the medical group, negligently failed to diagnose her breast cancer in the 10 months leading up to her diagnosis in April 2015. She argued the OB-GYN disregarded her 5 or 6 separate complaints of an indentation and lump in her left breast, which she made over the course of 7 or 8 visits with the OB-GYN starting in June 2014. The plaintiff was ultimately diagnosed after she returned to the medical group in April 2015 complaining of newly developed inflammatory breast cancer symptoms, which had manifested in the weeks leading up to the visit.
The plaintiff also faulted the OB-GYN for not ordering more frequent breast cancer screening based on her family history of breast cancer in her sister, grandmother, and 2 great aunts. Although there were many breast cancer risk assessment tools available during the time at issue, plaintiff argued the OB-GYN should have used the Tyrer-Cuzick Model to calculate plaintiff’s lifetime breast cancer risk. Based on that model, plaintiff’s expert testified plaintiff should have received annual screening mammograms and MRIs starting 10 years before the anniversary of her youngest family member’s diagnosis.
The defense argued the plaintiff treated with several different healthcare providers for a variety of specific complaints from June 2014 until April 2015. None of the medical records from any of those providers documented a single breast-related complaint. Further, all the healthcare providers who treated plaintiff from April 2015 onward consistently documented her earliest breast symptom – increased size in her left breast – occurred just a few months prior to diagnosis and was so subtle that she dismissed it as an issue with her bra at the time. Additionally, the plaintiff had only 2 visits with the OB-GYN (not 5 or 6) in 2014 and 1 visit in 2015 – none concerned any breast-related issues.
The defense also argued the OB-GYN appropriately utilized the National Cancer Institute’s widely accepted Gail Model to assess the plaintiff’s lifetime breast cancer risk. The standard of care does not require any OB-GYN to use a complicated model like Tyrer-Cuzick, which tends to overestimate breast cancer risk. Further, the plaintiff only ever reported having a grandmother and sister with breast cancer. Based on the information known to the OB-GYN and plaintiff’s lifetime risk using the Gail Model, the OB-GYN in fact exceeded the standard of care by ordering a screening mammogram when the plaintiff was 35. When the result was negative, a follow-up mammogram was not indicated until the plaintiff turned 40 or made breast-related complaints.
The jury ultimately agreed with the defense that the OB-GYN always performed within the standard of care.
Clark R. Hudson is a shareholder at Neil Dymott Hudson and concentrates his practice on the defense of healthcare professionals and civil litigation. Mr. Hudson may be reached at (619) 238-1712.
