Handling the Failure To Diagnose Breast Cancer Malpractice Case

By Mark A. Abramson and Kevin F. Dugan

I. Introduction

A breast lump is the most common clinical breast problem causing women to seek treatment and remains the most common presentation of breast cancer.1 More women in the United States are diagnosed with breast cancer every year than with any other cancer except skin cancer. Annually, about 180,000 cases will be diagnosed and 44,000 women will die of the disease. Many of these lives could have been saved by early detection.2 Not suprisingly, errors involving the failure to detect breast cancer lead to a large number of medical negligence suits. The following is a description of one such case.

II. Facts:

Kelley Peterson was 28 years old and in good health when she first felt a lump in her breast during a self-examination. Kelley had been doing self-exams regularly for ten years. When she found the lump, she made an appointment with Dr. Kathleen Morris, a board-certified obstetrician-gynecologist. When Kelley saw Dr. Morris her only complaint was the breast lump. Dr. Morris performed a clinical breast examination but was unable to feel the lump.

Following the exam, Dr. Morris noted "fibrocystic change" in both of Kelley's breasts. Kelley did not return to Dr. Morris, but received primary health care from other providers. The breast lump persisted and twenty months later, in July, 1998, she was diagnosed with breast cancer. By that time, the cancer had metastasized and 21 out of 25 lymph nodes tested positive. She underwent surgery, radiotherapy, and chemotherapy and is currently disease free. Unfortunately, it is highly likely that she will experience a fatal recurrence.

III. The Lawsuit:

Kelley brought suit against Dr. Morris and her practice. She contended that when she presented with a complaint of a breast lump, the standard of care required the doctor to rule out cancer by imaging, biopsy, or clear instructions for follow up. Kelley argued that mammography or ultrasonography probably would have identified the breast cancer in 1996 and would have led to treatment at an earlier stage with less nodal involvement and a far better prognosis. The 20 month delay in diagnosis, she asserted, allowed the cancer to grow and spread to the point where it could no longer be successfully treated.

Dr. Morris offered a multi-layered defense. First, she maintained that no further evaluation was necessary in November, 1996, in light of the fact that she was unable to find the breast lump. Second, she claimed that, if the cancer existed at all in November of 1996, it was so small that it would not have been evident on ultrasound or mammography. Lastly, she argued that the twenty month delay was meaningless in that there was probably significant lymph node involvement present in November of 1996.

IV. Trial:

Kelley testified at trial that she showed Dr. Morris where the lump was during the November 1996 appointment and that Dr. Morris told her it was merely a benign cyst. She clearly recalled that Dr. Morris reassured her and did not tell her she needed to return for further evaluation of her breast lump.

Dr. Morris testified that she did not have any memory of Kelley or her November 1996 appointment. She strongly defended her treatment as reflected in the medical records. However, she conceded that she would have expected Kelley to leave her office feeling that she did not have to worry about the lump being cancer.

After Dr. Morris testified, a juror sent a note to the judge asking how the doctor was coping with the lawsuit. Over defense counsel's objection, the judge removed the juror and replaced her with an alternate.

Kelley presented the testimony of a single expert witness - a gynecologic oncologist from South Carolina. The expert testified that Dr. Morris breached the standard of care by failing to go beyond her inconclusive clinical examination with ultrasound, mammography, needle biopsy, or referral to a surgeon and by erroneously reassuring Kelley that she had nothing to be concerned about. He concluded that the cancer would have been diagnosed if Dr. Morris had utilized the proper techniques.

The same expert testified on causation. He cited reported statistics which he felt established that Kelley probably would have been cured if her cancer had been diagnosed and treated in November of 1996. He also referenced statistics showing that, despite her disease-free status, it was almost certain that she would suffer a recurrence which she would not survive.

Dr. Morris presented testimony from three Harvard doctors: a gynecologist, a breast surgeon, and a pathologist. The gynecologist and surgeon testified that Dr. Morris had not breached the standard of care. They stated that it was appropriate for her to instruct Kelley to return for a follow-up examination and that imaging and biopsy were not indicated on the first visit for a patient this young.

Dr. Morris's expert pathologist testified that he could tell a lot from the size of the cancerous tumor that was ultimately found in July of 1998. Utilizing the controversial "doubling-time" theory, the expert concluded that the tumor was so small in November of 1996 that it would not have been identified by the imaging studies available at the time. He also stated that, by comparing the growth rate of the cancer with the degree of lymph node involvement found after diagnosis, he was able to determine that the cancer had already metastasized to many lymph nodes by the time Kelley saw Dr. Morris in November of 1996.

Kelley did not claim any special damages. The judge instructed the jury on pain and suffering, loss of enjoyment of life, and fear of future harm. Over the plaintiff's objection, the judge gave a comparative fault instruction based on the defendants' argument that Kelley was negligent in failing to return for her annual exam.

After deliberating over portions of three days, the jury returned a verdict awarding damages in the amount of $3,000,000 and apportioning liability 65% to Dr. Morris and 35% to Kelley.

V. Post Trial Motion:

Not surprisingly, the defendants filed a post trial motion asking the Court to set aside the verdict, or in the alternative, to order remittitur. The defendants' prime contention was that the judge erroneously prevented them from introducing evidence that Kelley had missed prior unrelated medical appointments. They argued that this was relevant to their comparative fault claim and that the plaintiff had opened the door to such evidence by portraying Kelley as a model patient. They also claimed, among other things, that the amount of the verdict was manifestly exorbitant in light of the fact that Kelley had no special damages and was presently disease-free. The judge rejected each of the defendants' arguments and denied their motion in its entirety.

VI. Resolution:

Following the denial of the defendants' post trial motion, but prior to the filing of a notice of appeal, the parties agreed to a private mediation. The case was settled at mediation. In light of Kelley's uncertain future, the prospect of an extended appeal period was particularly troubling.

VII. Discussion:

The clinical presentation of breast cancer is often subtle. Although it is correct that breast cancer presents as a hard mass, that does not tell the full story. It is generally believed that any palpable finding not matched in a mirror-image location in the opposite breast is a reason for concern.3 Simply put, it is impossible to rule out breast cancer on clinical findings alone.

Although clinicians frequently reassure women that a self-reported breast mass is merely a cyst, it is impossible to distinguish a cyst from a solid mass by palpation alone.4 The treating medical care provider must establish that a palpable breast abnormality is a cyst and not a solid mass. While this can be accomplished with imaging studies such as ultrasonography, needle aspiration is preferred because it not only diagnoses the condition, it also drains the mass which will relieve any pain associated with the mass.5

A frequent problem is the tendency of practitioners to assume that a mass found in a premenopausal patient is highly unlikely to be cancerous. This is a very dangerous assumption. Although it is true that the majority of women diagnosed with breast cancer are 50 years of age or older, the fact remains that tens of thousands of younger women are diagnosed each year and thousands of them die.6

Establishing causation in failure to diagnose breast cancer cases requires familiarity with current medical literature. The most important determinants of survival probability are tumor size and the presence and extent of axillary lymph node involvement. Both have been shown to be highly associated with survival.

Counsel should also be familiar with the so-called "doubling time" theory often employed by the defense. "Doubling time" refers to the time required for a tumor to double its diameter. The defense may use the theory to argue that significant lymph node involvement was already present when the alleged failure to diagnose occurred. When presented with this argument, it is important to bear in mind that a doubling of tumor diameter carries with it an eight-fold increase in tumor volume. In fact, tumor doubling times "represent a complex relationship between cell cycle time, the percentage of cells cycling, and the likelihood that a newly divided cell will not contribute to the tumor mass."7 It is well-known that in the case of breast cancer, most of the tumor is made of cells that are not cycling and that most of the offspring of a cycling cell do not survive. Thus, doubling times should be used as only a rough index of the aggressiveness of the tumor. They do not provide a valid means for estimating the time from origination to diagnosis.8

VIII. Conclusion:

The Peterson case teaches us a lesson outside of the law that we can all use as the numbers suggest that we will all be affected by breast cancer in our lives. A breast lump should be considered cancerous until proven otherwise. With today's technology, a physical exam is simply not sufficient, regardless of what a medical provider might say.


  1. See Harris, Jay R., DISEASES OF THE BREAST at 67 (1996)
  2. "Cancer Facts for Women," American Cancer Society (1998).
  3. See Haagensen, C., "Physicians Role in the Detection and Diagnosis of Breast Disease," DISEASES OF THE BREAST at 516 (3d. Ed. 1986); Osuch, J.R. and V.L. Bonham, "The Timely Diagnosis of Breast Cancer," CANCER 1994;74:271.
  4. See id., Osuch, et al.; Donegan, W.L., "Evaluation of a Palpable Breast Mass," N Engl J Med 1992;327:937.
  5. See id., Donegan; Moore, M.P., "Management of Common Breast Disorders," BREAST DISEASES at 77 (2d. Ed. 1991).
  6. See Boring, C.C. et al., "Cancer Statistics," CA Cancer J Clin 1994;44:7.
  7. Id., Note 1 at 378.
  8. Id.